Exhibit 1.1
Execution Version
Noble Holding International Limited
$250,000,000 7.375% Senior Notes due 2014
Underwriting Agreement
November 18, 2008
Goldman, Sachs & Co.
Citigroup Global Markets Inc.
SunTrust Robinson Humphrey, Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Noble Holding International Limited, a Cayman Islands exempted company limited by shares and
wholly-owned subsidiary of the Parent Guarantor (defined below) (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule
I hereto (the “Underwriters”) an aggregate of $250,000,000 principal amount of the Notes specified
above (the “Securities”), and Noble Corporation, a Cayman Islands exempted company limited by
shares (the “Parent Guarantor”), proposes, subject to the terms and conditions stated herein, to
guarantee the Company’s payment obligations under the Securities and the indenture governing the
Securities (the “Guarantee”).
1. Each of the Company and the Parent Guarantor represents and warrants to, and agrees with,
each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-155421) in respect
of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no stop
order suspending the effectiveness of such registration statement or any part thereof has
been issued and no proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act
has been received by the Parent Guarantor, the Company or any other co-registrant (the base
prospectus filed as part of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this Agreement, is
hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a
“Preliminary Prospectus”; the various parts of such registration statement, including
all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating
to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be
part of such registration statement, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called the
“Registration Statement”; the Basic Prospectus, as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof
is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and incorporated therein, in each case after the date of
the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Parent Guarantor filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter
called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”), and the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Parent Guarantor or the
Company by an Underwriter through Goldman, Sachs & Co., Citigroup Global Markets Inc. or
SunTrust Robinson Humphrey, Inc. expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 4:55 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final
term sheet prepared and filed pursuant to Section 5(a) hereof, taken together (collectively,
the “Pricing Disclosure Package”), as of the Applicable Time did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on
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Schedule II(a) hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished
in writing to the Parent Guarantor or the Company by an Underwriter through Goldman, Sachs &
Co., Citigroup Global Markets Inc. or SunTrust Robinson Humphrey, Inc. expressly for use
therein;
(d) The documents incorporated by reference in the Pricing Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Pricing Prospectus or any further
amendment or supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Parent Guarantor or the Company by an Underwriter through Goldman, Sachs &
Co., Citigroup Global Markets Inc. or SunTrust Robinson Humphrey, Inc. expressly for use
therein, or to any Form T-1; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth on Schedule
II(b) hereto;
(e) The Registration Statement conforms, and any further amendments to the Registration
Statement will conform, in all material respects to the requirements of the Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to each part of the Registration
Statement and any amendment thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Parent Guarantor or the Company by an Underwriter
through Goldman, Sachs & Co., Citigroup Global Markets Inc. or SunTrust Robinson Humphrey,
Inc. expressly for use therein, or to any Form T-1;
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(f) The Prospectus conforms, and any further supplements to the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and does not and will not, as of
the applicable issue date of the Prospectus and any supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Parent Guarantor or the Company by an Underwriter through Goldman, Sachs &
Co. expressly for use therein;
(g) Neither the Parent Guarantor nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or contemplated
in the Pricing Prospectus; and, since the respective dates as of which information is given
in the Registration Statement and the Pricing Prospectus, there has not been any change in
the capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries
(other than changes due to repurchases of the Parent Guarantor’s ordinary shares under the
Parent Guarantor’s announced share repurchase program and changes, if any, in the ordinary
course of business, (i) in amounts outstanding under the Parent Guarantor’s unsecured
revolving credit facility or (ii) due to issuances of the Parent Guarantor’s ordinary shares
under the Parent Guarantor’s share-based employee benefit and options plans) or any material
adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders’ equity or
results of operations of the Parent Guarantor and its subsidiaries taken as a whole (a
“Material Adverse Effect”), otherwise than as set forth or contemplated in the Pricing
Prospectus;
(h) The Parent Guarantor and its subsidiaries have good and marketable title to all
real property and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are described in
the Registration Statement and the Pricing Prospectus or such as do not materially affect
the value of such property or do not interfere with the use made and proposed to be made of
such property by the Parent Guarantor and its subsidiaries or where the failure to have such
title or to be free and clear of such liens, encumbrances and defects would not have a
Material Adverse Effect; and any real property and buildings held under lease by the Parent
Guarantor and its subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not materially interfere with the use
made and proposed to be made of such property and buildings by the Parent Guarantor and its
subsidiaries;
(i) Each of the Company and the Parent Guarantor has been duly incorporated and is
validly existing as an exempted company limited by shares in good standing under the laws of
the Cayman Islands, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Pricing
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Prospectus, and is duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction; and each of the Parent Guarantor’s subsidiaries set forth on
Schedule III hereto (collectively, the “Material Subsidiaries”, and each a “Material
Subsidiary”) has been duly incorporated or formed, as the case may be, and is validly
existing as a corporation, limited partnership or limited liability company, as the case may
be, in good standing under the laws of its jurisdiction of incorporation or formation;
(j) The Parent Guarantor has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Parent Guarantor have been
duly and validly authorized and issued and are fully paid and non-assessable; and all of the
issued shares of capital stock of each Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for directors’
qualifying shares) are owned directly or indirectly by the Parent Guarantor, free and clear,
to the knowledge of the Parent Guarantor and the Company, of all liens, encumbrances or
claims;
(k) The Securities have been duly authorized and, when issued and delivered pursuant to
this Agreement, will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the benefits
provided by the indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement, as it may be amended and supplemented by any supplemental
indenture (the “Indenture”); the Guarantee, which is set forth in the Indenture, has been
duly authorized and, when the Indenture is executed and delivered pursuant to this
Agreement, will have been duly executed, authenticated, made and delivered and will
constitute valid and legally binding obligations of the Parent Guarantor entitled to the
benefits provided by the Indenture; the Indenture has been duly authorized by the Company
and duly qualified under the Trust Indenture Act, and, at the Time of Delivery, the
Indenture will constitute a valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the Securities, the Guarantee and
the Indenture will conform to the descriptions thereof contained in the Pricing Disclosure
Package and the Prospectus;
(l) The issue and sale of the Securities, the making of the Guarantee and the
compliance by the Company and the Parent Guarantor, as applicable, with all of the
provisions of the Securities, the Guarantee, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not (i) conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Parent Guarantor or any of its subsidiaries is a party or by which
the Parent Guarantor or any of its subsidiaries is bound or to which any of the property or
assets of the Parent Guarantor or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the memoranda of association or articles of association
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of the Parent Guarantor or the Company, (iii) result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Parent Guarantor or any of its subsidiaries or any of their
properties, except (x) that any rights to indemnification and contribution set forth in this
Agreement may be limited by federal and state securities laws and public policy
considerations and (y) with respect to clause (i) above, for such conflicts, breaches or
violations as would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the
issue and sale of the Securities, the making of the Guarantee or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture, except such as
have been, or will have been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
(m) Neither the Parent Guarantor nor any of its Material Subsidiaries is in violation
of its memorandum of association, articles of association, certificate of incorporation or
other similar organizational document, as applicable; and neither the Parent Guarantor nor
any of its subsidiaries is in default in the performance or observance of any obligation,
covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except any default that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
(n) The statements set forth in the Pricing Prospectus and the Basic Prospectus under
the caption “Description of the Notes” and “Description of the Debt Securities”, insofar as
they purport to constitute a summary of the terms of the Securities and under the caption
“Underwriting”, “Plan of Distribution”, and “Cayman Island Tax Considerations”, insofar as
they purport to describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(o) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Parent Guarantor or any of its subsidiaries is
a party or of which any property of the Parent Guarantor or any of its subsidiaries is the
subject that, if determined adversely to the Parent Guarantor or any of its subsidiaries,
would individually or in the aggregate reasonably be expected to have a Material Adverse
Effect; and, to the best knowledge of the Parent Guarantor and the Company, no such
proceedings are threatened or contemplated by governmental authorities or threatened by
others;
(p) Neither the Company nor the Parent Guarantor is or, after giving effect to the
offering and sale of the Securities and the application of the proceeds therefrom as
described in the Pricing Prospectus, will be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
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(q) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the
Parent Guarantor or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on
the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the
Registration Statement that the Parent Guarantor or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the
Parent Guarantor was not an “ineligible issuer” as defined in Rule 405 under the Act;
(r) PricewaterhouseCoopers LLP, who have certified certain financial statements of the
Parent Guarantor and its subsidiaries, and have audited the Parent Guarantor’s internal
control over financial reporting, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(s) The Parent Guarantor maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by the Parent Guarantor’s
principal executive officer and principal financial officer, or under their supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. The Parent Guarantor’s internal control over financial
reporting is effective and the Parent Guarantor is not aware of any material weaknesses in
its internal control over financial reporting;
(t) Except as disclosed in the Parent Guarantor’s reports filed with the Commission
under the Exchange Act, since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Prospectus, there have been no changes in the
Parent Guarantor’s internal control over financial reporting that have materially affected,
or are reasonably likely to materially affect, the Parent Guarantor’s internal control over
financial reporting;
(u) Except as would not, individually or in the aggregate, result in a Material Adverse
Effect, (A) neither the Parent Guarantor nor any of its Material Subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “Environmental
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Laws”), (B) the Parent Guarantor and each of its Material Subsidiaries have all
permits, authorizations and approvals required under any applicable Environmental Laws and
are in compliance with their requirements, (C) there are no pending or, to the knowledge of
the Company and the Parent Guarantor, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law against the Parent
Guarantor or any of its subsidiaries and (D) to the knowledge of the Company and the Parent
Guarantor, there are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the Parent Guarantor or
any of its subsidiaries relating to Hazardous Materials or any Environmental Laws; and
(v) The Parent Guarantor maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been designed to ensure that
material information relating to the Parent Guarantor and its subsidiaries is made known to
the Parent Guarantor’s principal executive officer and principal financial officer by others
within those entities; and such disclosure controls and procedures are effective.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price of 99.095% of the principal amount thereof, plus
accrued interest, if any, from November 21, 2008 to the Time of Delivery (as defined below), the
principal amount of Securities set forth opposite the name of such Underwriter in Schedule I
hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by one
or more definitive global Securities in book-entry form that will be deposited by or on behalf of
the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company will
deliver the Securities to Goldman, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to Goldman, Sachs & Co. at least
48 hours in advance, by causing DTC to credit the Securities to the account of Goldman, Sachs & Co.
at DTC. The Company will cause the certificates representing the Securities to be made available to
Goldman, Sachs & Co. for checking at least 24 hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the “Designated Office”). The time and
date of such delivery and payment shall be 9:00 a.m., New York City time, on November 21, 2008 or
such other time and date as Goldman, Sachs & Co. and the Company may agree upon in writing. Such
time and date are herein called the “Time of Delivery”.
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(b) The documents to be delivered at the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities
and any additional documents requested by the Underwriters pursuant to Section 8(i) hereof,
will be delivered at the offices of Vinson & Elkins LLP, First City Tower, 1001 Fannin
Street, Suite 2500, Houston, Texas 77002-6760 (the “Closing Location”), and the Securities
will be delivered at the Designated Office, all at the Time of Delivery. A meeting will be
held at the Closing Location at 2:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the documents to
be delivered pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, “New York Business Day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
5. The Company and the Parent Guarantor agree with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on
the second business day following the date of this Agreement; to make no further amendment
or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus
prior to the Time of Delivery that shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to furnish you with copies
thereof; to prepare a final term sheet, containing solely a description of the Securities,
in a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Act
within the time required by such Rule; to file promptly all other material required to be
filed by the Company or the Parent Guarantor with the Commission pursuant to Rule 433(d)
under the Act; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company or the Parent Guarantor with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required in connection with the offering
or sale of the Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any
notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension
of the qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or the Prospectus
or for additional information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts to obtain the withdrawal
of such order; and in the event of any such issuance of a notice of objection, promptly to
take such steps including, without limitation, amending the Registration Statement or filing
a
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new registration statement, at its own expense, as may be necessary to permit offers
and sales of the Securities by the Underwriters (references herein to the Registration
Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the
Act not later than may be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus that shall be disapproved by you promptly
after reasonable notice thereof;
(c) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities and the Guarantee for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(d) Prior to 4:30 p.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such quantities as
you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus that will correct such
statement or omission or effect such compliance; and in case any Underwriter is required to
deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) in connection with sales of any of the Securities at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic
copies as you may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in
any event not later than 16 months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the Parent
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Guarantor and its subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder (including, at the
option of the Parent Guarantor, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including
the later of the Time of Delivery and such earlier time as you may notify the Company, not
to offer, sell, contract to sell, or otherwise dispose of any debt securities of the Company
or the Parent Guarantor that mature more than one year after such Time of Delivery and that
are substantially similar to the Securities or the Guarantee;
(g) To pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Act without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) under the Act; and
(h) To use the net proceeds received by it from the sale of the Securities pursuant to
this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of
Proceeds”.
6. (a)(i) The Company and the Parent Guarantor each represents and agrees that, other than the
final term sheet prepared and filed pursuant to Section 5(a) hereof, without the prior consent of
Goldman, Sachs & Co., it has not made and will not make any offer relating to the Securities or the
Guarantee that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of
the Company and Goldman, Sachs & Co., other than (x) one or more free writing
prospectuses as defined in Rule 405 under the Act to the extent it or they
contain(s) the terms of the Securities, the Guarantee or the offering that do not
reflect the final terms of the Securities, the Guarantee or the offering and (y) one
or more term sheets relating to the Securities, the Guarantee or the offering that
do not contain substantive changes from or additions to the final term sheet
referred to in Section 5(a) hereof, it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus; and
(iii) any such free writing prospectus the use of which has been consented to by
the Company and Goldman, Sachs & Co. (including the final term sheet prepared and
filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) hereto;
(b) The Company and the Parent Guarantor have complied and will comply with the
requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and legending; and
(c) The Company and the Parent Guarantor agree that, if at any time following issuance
of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include
11
an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances then prevailing, not
misleading, the Company or the Parent Guarantor will give prompt notice thereof to Goldman,
Sachs & Co. and, if requested by Goldman, Sachs & Co., will prepare and furnish without
charge to each Underwriter an Issuer Free Writing Prospectus or other document that will
correct such conflict, statement or omission; provided, however, that this agreement shall
not apply to any statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co., Citigroup Global Markets Inc. or SunTrust Robinson
Humphrey, Inc. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Securities and the Guarantee under the
Act and all other expenses in connection with the preparation, printing, reproduction and filing of
the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing this Agreement, the Indenture, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering, purchase, sale and
delivery of the Securities and the Guarantee; (iii) any expenses in connection with the
qualification of the Securities and the Guarantee for offering and sale under state securities laws
as provided in Section 5(d) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv)
any fees charged by securities rating services for rating the Securities; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any
required review by the Financial Industry Regulatory Authority of the terms of the sale of the
Securities and the Guarantee; (vi) the cost of preparing the Securities and the Guarantee; (vii)
the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture, the Securities and the Guarantee; and
(viii) all other costs and expenses incident to the performance of its obligations hereunder that
are not otherwise specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Company and the
Parent Guarantor herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company and the Parent Guarantor shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet
contemplated by Section 5(a) hereof, and any other material required to
12
be filed by the Company or the Parent Guarantor pursuant to Rule 433(d) under the Act,
shall have been filed with the Commission within the applicable time periods prescribed for
such filings by Rule 433; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending
or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Vinson & Elkins LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory
to you, with respect to certain matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Baker Botts L.L.P., counsel for the Company and the Parent Guarantor, shall have
furnished to you their written legal opinion letter, dated the Time of Delivery, in form and
substance satisfactory to you, and substantially as set forth on Annex II(a) hereto:
(d) Maples and Calder, Cayman Islands counsel for the Company and the Parent Guarantor,
shall have furnished to you their written legal opinion letter, dated the Time of Delivery,
in form and substance satisfactory to you, and substantially as set forth on Annex II(b)
hereto.
(e) On the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:30 a.m., New York City time, on the effective date of any post effective amendment to
the Registration Statement filed subsequent to the date of this Agreement and also at the
Time of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and substance satisfactory
to you, to the effect set forth in Annex I hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex I(a) hereto and a form of
letter to be delivered on the effective date of any post-effective amendment to the
Registration Statement, and as of the Time of Delivery is attached as Annex I(b) hereto);
(f) (i) Neither the Parent Guarantor nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which
information is given in the Pricing Prospectus there shall not have been any change in the
capital stock or long-term debt of the Parent Guarantor or any of its subsidiaries (other
13
than changes due to repurchases of the Parent Guarantor’s ordinary shares under the
Parent Guarantor’s announced share repurchase program and changes, if any, in the ordinary
course of business, (i) in amounts outstanding under the Parent Guarantor’s unsecured
revolving credit facility or (ii) due to issuances of the Parent Guarantor’s ordinary shares
under the Parent Guarantor’s share-based employee benefit and options plans) or any change,
or any development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the Parent
Guarantor and its subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in
your judgment so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the debt securities of the Company or the Parent Guarantor by any
“nationally recognized statistical rating organization”, as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of any such debt securities;
(h) On or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on the New York
Stock Exchange; (ii) a suspension or material limitation in trading in the Parent
Guarantor’s securities on the New York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance services in
the United States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or (v) the
occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in
clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(i) The Company and the Parent Guarantor shall have complied with the provisions of
Section 5(e) hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(j) The Company and the Parent Guarantor shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company and the Parent
Guarantor, respectively, satisfactory to you as to the accuracy of the respective
representations and warranties of the Company and the Parent Guarantor herein at and as of
such time, as to the performance by the Company and the Parent Guarantor of all of their
respective obligations hereunder to be performed at or prior to such time, as to the matters
set forth in subsections (a) and (f) of this Section and as to such other matters as you may
reasonably request.
14
9. (a) The Company and the Parent Guarantor will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or
required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor the Parent Guarantor shall be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company or the Parent
Guarantor by any Underwriter through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and the Parent
Guarantor against any losses, claims, damages or liabilities to which the Company or the
Parent Guarantor may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written information furnished to
the Company or the Parent Guarantor by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability that it may have to any
indemnified party otherwise than under such subsection. In case any
15
such action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the other, from
the offering of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
Company and the Parent Guarantor, on the one hand, and the Underwriters, on the other, in
connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Parent Guarantor, on the one hand, or
the Underwriters, on the other, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company,
the Parent Guarantor and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were
16
determined by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Parent Guarantor under this Section 9 shall
be in addition to any liability that the Company or the Parent Guarantor may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall be in
addition to any liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company and
the Parent Guarantor and to each person, if any, who controls the Company or the Parent
Guarantor within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities that it
has agreed to purchase hereunder, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If within 36 hours after
such default by any Underwriter you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to procure another party or
other parties satisfactory to you to purchase such Securities on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have so arranged for the
purchase of such Securities, or the Company notifies you that it has so arranged for the purchase
of such Securities, you or the Company shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company and the Parent Guarantor agree to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party to
this Agreement with respect to such Securities.
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(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Securities that remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Securities which such Underwriter agreed to purchase hereunder)
of the Securities of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of Securities that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities, or if the Company
shall not exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Parent Guarantor, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Parent Guarantor and the several Underwriters, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the results thereof) made
by or on behalf of any Underwriter or any controlling person of any Underwriter, the Company or any
officer or director or controlling person of the Company or the Parent Guarantor or any officer or
director or controlling person of the Parent Guarantor, and shall survive delivery of and payment
for the Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company
nor the Parent Guarantor shall then be under any liability to any Underwriter except as provided in
Sections 7 and 9 hereof; but, if for any other reason, the Securities and the Guarantee are not
delivered by or on behalf of the Company and the Parent Guarantor as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but neither the Company nor the
Parent Guarantor shall then be under further liability to any Underwriter except as provided in
Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or
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agreement on behalf of any Underwriter made or given by you jointly or by Goldman, Sachs & Co.
on behalf of you as the representatives.
14. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as
representatives in care of Goldman, Sachs & Co., One New York Plaza, 42nd Floor, New York, New York
10004, Attention: Registration Department; and if to the Company or the Parent Guarantor shall be
delivered or sent by mail, telex or facsimile transmission to the address of the Parent Guarantor
set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its Underwriters’
Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the
Company and the Parent Guarantor by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company, the Parent Guarantor and, to the extent provided in Sections 9 and 11
hereof, the officers and directors of the Company and the Parent Guarantor and each person who
controls the Company or the Parent Guarantor or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
17. The Company and the Parent Guarantor acknowledge and agree that (i) the purchase and sale
of the Securities and the Guarantee pursuant to this Agreement is an arm’s-length commercial
transaction between the Company and the Parent Guarantor, on the one hand, and the several
Underwriters, on the other, (ii) in connection therewith and with the process leading to such
transaction, each Underwriter is acting solely as a principal and not the agent or fiduciary of the
Company or the Parent Guarantor, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company or the Parent Guarantor with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company or the Parent Guarantor on other matters) or any other
obligation to the Company or the Parent Guarantor except the obligations expressly set forth in
this Agreement or any other effective agreement between you and the Company or the Parent Guarantor
and (iv) the Company and the Parent Guarantor have consulted their own legal and financial advisors
to the extent they deemed appropriate. The Company and the Parent Guarantor agree that they will
not claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company or the Parent Guarantor, in connection
with such transaction or the process leading thereto.
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18. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company or the Parent Guarantor, on the one hand, and the Underwriters, or any of
them, on the other, with respect to the subject matter hereof.
19.
This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
20. The Company, the Parent Guarantor and each of the Underwriters hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
21. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
22. Notwithstanding anything herein to the contrary, the Company and the Parent Guarantor are
authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company or the Parent Guarantor relating to that treatment and
structure without the Underwriters imposing any limitation of any kind. However, any information
relating to the tax treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply with securities
laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that
treatment.
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If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and the Parent Guarantor. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the signers thereof.
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Very truly yours,
Noble Holding International Limited
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By:
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/s/ Alan R. Hay
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Alan R. Hay
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Director
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Noble Corporation
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By:
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/s/ David W. Williams
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David W. Williams
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Chairman of the Board,
Chief Executive
Officer and President
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Accepted as of the date hereof:
Goldman, Sachs & Co.
Citigroup Global Markets Inc.
SunTrust Robinson Humphrey, Inc.
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By:
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/s/ Goldman, Sachs & Co.
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(Goldman, Sachs & Co.)
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On behalf of each of the Underwriters
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SCHEDULE I
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Principal Amount of
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Securities to be
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Underwriter
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Purchased
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Goldman, Sachs & Co.
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$
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125,000,000
|
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|
Citigroup Global Markets Inc.
|
|
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37,500,000
|
|
|
SunTrust Robinson Humphrey, Inc.
|
|
|
37,500,000
|
|
|
Barclays Capital Inc.
|
|
|
10,000,000
|
|
|
DnB NOR Markets, Inc.
|
|
|
10,000,000
|
|
|
Fortis Securities LLC
|
|
|
10,000,000
|
|
|
HSBC Securities (USA) Inc.
|
|
|
7,500,000
|
|
|
Mitsubishi UFJ Securities International plc
|
|
|
7,500,000
|
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|
Wells Fargo Securities, LLC
|
|
|
5,000,000
|
|
|
Total
|
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$
|
250,000,000
|
|
Schedule I
SCHEDULE II
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(a)
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Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
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None.
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(b)
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Additional Documents Incorporated by Reference:
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None.
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Schedule II
SCHEDULE III
MATERIAL SUBSIDIARIES
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Name of Subsidiary
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Jurisdiction of Incorporation or Formation
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Noble Holding (U.S.) Corporation
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Delaware
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Noble Drilling Corporation
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Delaware
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|
|
|
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Noble Drilling (U.S.) Inc.
|
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Delaware
|
|
|
|
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Noble Holding International Limited
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Cayman Islands
|
|
|
|
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|
Noble Drilling Holding LLC
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Delaware
|
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|
|
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Noble Asset Company Limited
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Cayman Islands
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|
|
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Noble International Limited
|
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Cayman Islands
|
Schedule III
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORM S-3
Noble Corporation
13135 South Dairy Ashford, Suite 800
Sugar Land, Texas 77478
and
Goldman, Sachs & Co.
Citigroup Global Markets Inc.
SunTrust Robinson Humphreys, Inc.
(as representatives of the several underwriters)
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York, 1004
Ladies and Gentlemen:
We have audited:
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1.
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the consolidated financial statements of Noble Corporation (the “Company”) and
subsidiaries as of December 31, 2007 and 2006 and for each of the three years in the period
ended December 31, 2007 included in the Company’s annual report on Form 10-K for the year
ended December 31, 2007 (the “Form 10-K”), which have been recast to include the historical
results of Noble Holding International Limited (“NHIL”) as a stand alone entity as of
December 31, 2007 and 2006 and for each of the three years in the period ended December 31,
2007 as reported on Note 19 of the consolidated financials statements included on the
Company’s current report on Form 8-K dated November 18, 2008 (the “Form 8-K”), and
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2.
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the effectiveness of the Company’s internal control over financial reporting as of
December 31, 2007.
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The consolidated financial statements referred to above are all incorporated by reference in the
registration statement (No. 333-155421-02) on Form S-3 filed by the Company under the Securities
Act of 1933 (the “Act”); our report with respect thereto is also incorporated by reference in
such registration statement. Such registration statement, including the prospectus and the
preliminary prospectus supplement, both dated November 18, 2008, is herein referred to as the
“Registration Statement.”
In connection with the Registration Statement:
Annex I-1
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1.
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We are an independent registered public accounting firm with respect to the Company within
the meaning of the Act and the applicable rules and regulations thereunder adopted by the
Securities and Exchange Commission (“SEC”) and the Public Company Accounting Oversight Board
(United States) (“PCAOB”).
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2.
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In our opinion, the consolidated financial statements audited by us and incorporated by
reference in the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the Securities Exchange Act of 1934 and the
related rules and regulations adopted by the SEC.
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3.
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We have not audited any financial statements of the Company as of any date or for any period
subsequent to December 31, 2007; although we have conducted an audit for the year ended
December 31, 2007, the purpose (and therefore the scope) of such audit was to enable us to
express our opinion on the consolidated financial statements as of December 31, 2007 and for
the year then ended, but not on the financial statements for any interim period within such
year. Therefore, we are unable to and do not express any opinion on the unaudited
consolidated balance sheets and the unaudited consolidated statements of income, of cash
flows, of shareholders’ equity and of comprehensive income included in the Company’s quarterly
reports on Form 10-Q for the quarters ended March 31, 2008, June 30, 2008 and September 30,
2008, incorporated by reference in the Registration Statement, or on the financial position,
results of operations or cash flows as of any date or for any period subsequent to December
31, 2007. Also, we have not audited the Company’s internal control over financial reporting
as of any date subsequent to December 31, 2007. Therefore, we do not express any opinion on
the Company’s internal control over financial reporting as of any date subsequent to December
31, 2007.
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4.
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For purposes of this letter, we have read the minutes of the 2008 meetings of the
shareholders, the Board of Directors, and the Audit, Finance, Compensation, and Nominating and
Corporate Governance Committees of the Company and its subsidiaries as set forth in the minute
books at November 14, 2008, officials of the Company having advised us that the minutes of all
such meetings through that date were set forth therein (except for those listed in Exhibit I,
which were not approved in final form, for which drafts were provided to us; officials of the
Company have represented that such drafts include all substantive actions taken at such
meetings), and have carried out other procedures to November 14, 2008 (our work did not extend
to the period from November 15, 2008 to November 18, 2008, inclusive) as follows:
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a.
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With respect to the three-month, three- and six-month, and three- and nine-month
periods ended March 31, 2008 and 2007, June 30, 2008 and 2007 and September 30, 2008 and
2007, respectively, we have:
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(i)
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performed the procedures (completed on May 9, 2008, August 8, 2008 and November
7, 2008, respectively) specified by the PCAOB for a review of interim financial
information as described in SAS No. 100,
Interim Financial Information
, on the
unaudited consolidated financial statements as of and for the three-month periods ended
March 31, 2008 and 2007, three- and six-month periods ended June 30, 2008 and 2007, and
three- and nine-month periods ended September 30, 2008 and 2007 included in the
Company’s quarterly reports on Form 10-Q for the quarters ended March 31, 2008, June
30, 2008 and September 30, 2008, respectively, incorporated
|
Annex I-2
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by reference in the Registration Statement; and
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(ii)
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inquired of certain officials of the Company who have responsibility for
financial and accounting matters whether the unaudited consolidated financial
statements referred to in a.(i) above comply as to form in all material respects with
the applicable accounting requirements of the Securities Exchange Act of 1934 as it
applies to Form 10-Q and the related rules and regulations adopted by the SEC.
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b.
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With respect to the period from October 1, 2008 to October 31, 2008, we have:
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(i)
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read the unaudited consolidated financial data of the Company and subsidiaries
for October of both 2008 and 2007 furnished us by the Company, officials of the Company
having advised us that no such financial data as of any date or for any period
subsequent to October 31, 2008 were available. The financial information for October
of both 2008 and 2007 is incomplete in that it omits the statement of cash flows, of
shareholders’ equity and of comprehensive income and other disclosures.
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(ii)
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inquired of certain officials of the Company who have responsibility for
financial and accounting matters as to whether the unaudited consolidated financial
data referred to in b.(i) above are stated on a basis substantially consistent with
that of the audited consolidated financial statements incorporated by reference in the
Registration Statement.
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The foregoing procedures do not constitute an audit made in accordance with standards of the
PCAOB. Also, they would not necessarily reveal matters of significance with respect to the
comments in the following paragraph. Accordingly, we make no representations as to the
sufficiency of the foregoing procedures for your purposes.
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5.
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It should be noted effective January 1, 2008, the Company partially adopted SFAS No. 157,
Fair Value Measurements. Nothing came to our attention as a result of the foregoing
procedures, however, that caused us to believe that:
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a.
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(i)
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Any material modifications should be made to the unaudited consolidated financial
statements described in 4.a.(i), incorporated by reference in the Registration Statement,
for them to be in conformity with generally accepted accounting principles
.
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(ii)
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The unaudited consolidated financial statements described in 4.a.(i) do not
comply as to form in all material respects with the applicable accounting requirements
of the Securities Exchange Act of 1934 as it applies to Form 10-Q and the related rules
and regulations adopted by the SEC.
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b.
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(i)
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At October 31, 2008 there was any change in the ordinary shares, increase in
long-term debt, or decrease in consolidated net current assets (working capital) or
shareholders’ equity of the Company and subsidiaries consolidated as compared with amounts
shown in the September 30, 2008 unaudited consolidated balance sheet incorporated by
reference in the Registration Statement, except that the unaudited consolidated balance
sheet as of October 31, 2008, which we were furnished by the Company showed a change from
September 30, 2008 in the ordinary shares and an
|
Annex I-3
increase in long-term debt as disclosed in Exhibit II of this letter, or (ii) for the
period from October 1, 2008 to October 31, 2008, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated operating revenues
or in the total or per-share amounts of consolidated net income, except in all instances
for changes, increases or decreases which the Registration Statement discloses have
occurred or may occur.
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6.
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|
As mentioned in 4.b., Company officials have advised us that no consolidated financial data
as of any date or for any period subsequent to October 31, 2008 are available; accordingly,
the procedures carried out by us with respect to changes in financial statement items after
October 31, 2008 have, of necessity, been even more limited than those with respect to the
periods referred to in 4. We have inquired of certain officials of the Company who have
responsibility for financial and accounting matters as to whether (a) at November 14, 2008
there was any change in the ordinary shares, increase in long-term debt of the Company and
subsidiaries consolidated as compared with amounts shown in the September 30, 2008 unaudited
consolidated balance sheet incorporated by reference in the Registration Statement; or (b) for
the period from October 1, 2008 to November 14, 2008, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated operating revenues or in
the total or per-share amounts of consolidated net income. On the basis of these inquiries
and our reading of the minutes as described in 4, nothing came to our attention that caused us
to believe that there was any such change, increase or decrease, except in all instances for
changes, increases or decreases which the Registration Statement discloses have occurred or
may occur.
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7.
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For purposes of this letter, we have also read the items identified by you on the attached
copy of the preliminary prospectus supplement (Exhibit III) forming part of the Registration
Statement and the attached copies of the documents incorporated by reference in the
Registration Statement which include, the Company’s Form 8-K for the year ended December 31,
2007 (Exhibit IV), the Company’s quarterly report filed on Form 10-Q for the quarters ended
March 31, 2008 (Exhibit V), June 30, 2008 (Exhibit VI), and September 30, 2008 (Exhibit VII),
and have performed the following procedures, which were applied as indicated with respect to
the numbers explained below. We make no comment as to whether the SEC would view any non-GAAP
financial information included or incorporated by reference in this document as being
compliant with the requirements of Regulation G or Item 10 of Regulation S-K.
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1
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Compared the amount to corresponding amounts in the Company’s audited
consolidated financial statements as of December 31, 2007 and 2006 and
for each of the three years in the period ended December 31, 2007 or
the notes thereto, included in the Form 8-K dated November 18, 2008,
incorporated by reference in the Registration Statement described in
the first paragraph of this letter, and found such amount to be in
agreement.
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2
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Recomputed the amount or percentage using amounts contained in the
Company’s audited consolidated financial statements as of December 31,
2007 and 2006 and for each of the three years in the period ended
December 31, 2007 or the notes thereto, included in the Form 8-K dated
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Annex I-4
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November 18, 2008, incorporated by reference in the Registration
Statement, and found such amount or percentage to be in agreement.
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3
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Compared the amount or percentage to or recomputed the amount or
percentage based on a Company-prepared schedule, derived from the
Company’s accounting records, and found such amount or percentage to
be in agreement. We (a) compared the amounts on the schedule to
corresponding amounts appearing in the Company’s accounting records
and found such amounts to be in agreement, and (b) determined that the
schedule was mathematically correct.
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4
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Compared the amount to corresponding amounts in the Company’s
unaudited consolidated financial statements and/or the related notes
thereto, included in the March 31, 2008, June 30, 2008 or September
30, 2008 Form 10-Q incorporated by reference in the Registration
Statement described in paragraph 4a of this letter, and found such
amount to be in agreement.
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5
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Recomputed the amount or percentage using amounts contained in the
Company’s unaudited consolidated financial statements and/or the
related notes thereto, included in the March 31, 2008, June 30, 2008
or September 30, 2008 Form 10-Q incorporated by reference in the
Registration Statement described in paragraph 4a of this letter, and
found such amount to be in agreement.
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6
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Compared the ratios of earnings to fixed charges to ratios included on
a Company-prepared schedule, derived from the Company’s accounting
records, and found such ratios to be in agreement. We (a) compared
the amounts on the schedule to corresponding amounts appearing in the
Company’s accounting records and found such amounts to be in
agreement, and (b) determined that the schedule was mathematically
correct. However, we make no comment as to the Company’s compliance
with the disclosure requirements of Item 503(d) of Regulation S-K or
the appropriateness of management’s use of one-third (1/3) of rent
expense as the interest factor.
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|
8.
|
|
Our audit of the consolidated financial statements for the periods referred to in the
introductory paragraph of this letter comprised audit tests and procedures deemed necessary
for the purpose of expressing an opinion on such financial statements taken as a whole. For
none of the periods referred to therein, or any other period, did we perform audit tests for
the purpose of expressing an opinion on individual balances of accounts or summaries of
selected transactions such as those enumerated above, and, accordingly, we express no opinion
thereon.
|
Annex I-5
|
9.
|
|
It should be understood that we make no representations regarding questions of legal
interpretation or regarding the sufficiency for your purposes of the procedures enumerated in
the second preceding paragraph; also, such procedures would not necessarily reveal any
material misstatement of the amounts or percentages listed above. Further, we have addressed
ourselves solely to the foregoing data as set forth in the Registration Statement and make no
representations regarding the adequacy of disclosure or regarding whether any material facts
have been omitted.
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|
10.
|
|
This letter is solely for the information of the addressees and to assist the underwriters in
conducting and documenting their investigation of the affairs of the Company in connection
with the offering of the securities covered by the Registration Statement, and is not to be
used, circulated, quoted, or otherwise referred to within or without the underwriting group
for any other purpose, including but not limited to the registration, purchase, or sale of
securities, nor is it to be filed with or referred to in whole or in part in the Registration
Statement or any other document, except that reference may be made to it in the underwriting
agreement or in any list of closing documents pertaining to the offering of the securities
covered by the Registration Statement.
|
Annex I-6
ANNEX II(a)
FORM OF OPINION OF COUNSEL
FOR THE COMPANY AND THE PARENT GUARANTOR
1. The Parent Guarantor has been duly qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of the jurisdictions specified in the opinion.
2. Each of Noble Holding (U.S.) Corporation, Noble Drilling Corporation and Noble Drilling
(U.S.) Inc. has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware; and all of the issued shares of capital stock of each such
corporation have been duly and validly authorized and issued, are fully paid and non-assessable,
and are owned directly or indirectly by the Parent Guarantor, free from liens, encumbrances or
claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State
of Delaware naming the Parent Guarantor or such corporations as debtor is on file as of a recent
date in the office of the Secretary of State of the State of Delaware or (ii) otherwise known to
such counsel, without independent investigation.
3. Noble Drilling Holding LLC has been duly organized and is an existing limited liability
company in good standing under the laws of the State of Delaware; and all of its issued and
outstanding membership interests have been duly authorized and validly issued in accordance with
its limited liability company agreement and the Delaware Limited Liability Company Act (the
“Delaware LLC Act”) and are fully paid (to the extent required under such limited liability company
agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of
the Delaware LLC Act), and such membership interests are owned directly or indirectly by the Parent
Guarantor free from liens, encumbrances or claims (i) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming the Parent Guarantor or Noble
Drilling Holding LLC as debtor is on file as of a recent date in the office of the Secretary of
State of the State of Delaware or (ii) otherwise known to such counsel, without independent
investigation, in each case other than liens, encumbrances and claims created by or arising under
the Delaware LLC Act or the governing documents of Noble Drilling Holding LLC.
4. To such counsel’s knowledge, there are no legal or governmental proceedings pending to
which the Parent Guarantor or any of its subsidiaries is a party or of which any property of the
Parent Guarantor or any of its subsidiaries is the subject that are of a character required to be
described in the Registration Statement or the Pricing Disclosure Package that are not described as
required.
5. When the Securities have been authenticated in the manner set forth in the Indenture and
delivered against due payment therefor, the Securities and the Guarantee will constitute a valid
and legally binding obligations of the Company and the Parent Guarantor, respectively, enforceable
against the Company and the Parent Guarantor in accordance with their terms, except as that
enforcement is subject to (i) any applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or conveyance or other laws relating to or
Annex II(b)-1
affecting creditors’ rights generally, (ii) general principles of equity (regardless of
whether that enforceability is considered in a proceeding in equity or at law) and (iii) any
implied covenants of good faith and fair dealing. The Securities and the Guarantee, in the forms
certified by the Company as of the date of such opinion, and the Indenture conform in all material
respects to the descriptions thereof contained in the final term sheet prepared and filed pursuant
to Section 5(a) of this Agreement and in the information set forth under the captions “Description
of Debt Securities” and “Description of the Notes” in the Pricing Prospectus.
6. Assuming the due authorization, execution and delivery thereof by the Company, the Parent
Guarantor and the Trustee, the Indenture constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as that enforcement
is subject to (i) any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or conveyance or other laws relating to or affecting creditors’ rights generally, (ii)
general principles of equity (regardless of whether that enforceability is considered in a
proceeding in equity or at law) and (iii) any implied covenants of good faith and fair dealing. The
Indenture has been qualified under the Trust Indenture Act.
7. The execution, delivery and performance by the Company and the Parent Guarantor of this
Agreement and the Indenture and the consummation by the Company and the Parent Guarantor of the
transactions contemplated thereby, do not violate or result in any breach of (i) any agreement or
instrument filed as an exhibit to or incorporated by reference into the Registration Statement or
(ii) any Applicable Laws, except, in the case of clause (i), for such violations or breaches that,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect. “Applicable Laws” is defined as the laws of the State of New York, the laws of the State of
Texas and the laws of the United States of America that, in such counsel’s experience, are normally
applicable to transactions of the type contemplated by the Agreement and the Indenture.
8. No consent, approval, authorization, order, registration or qualification of or with any
Applicable Governmental Authority is required for the issue and sale by the Company of the
Securities, the making of the Guarantee by the Parent Guarantor or the consummation by the Company
or the Parent Guarantor of the other transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust Indenture Act, and such consents,
approvals, authorizations, registrations or qualifications as may be required under the state
securities or blue sky laws in connection with the purchase and distribution of the Securities by
the Underwriters. “Applicable Governmental Authority” is defined as any governmental body, agency
or court of the United States of America, the State of Texas or the State of New York.
9. Neither the Company nor the Parent Guarantor is, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as described in the
Prospectus neither will be, an “investment company,” as such term is defined in the Investment
Company Act.
10. The Registration Statement, and the Prospectus and the documents incorporated by reference
therein (except for (i) the financial statements, including the notes thereto and the auditors’
reports thereon, included or incorporated by reference therein, (ii) the other financial
Annex II(b)-2
information included or incorporated by reference therein, and (iii) the Statements of
Eligibility Under the Trust Indenture Act of a Corporation Designated to Act as Trustee on Form
T-1, as to which such counsel expresses no opinion), when they became effective or were filed with
the Commission, as the case may be, appear on their face to have complied as to form in all
material respects with the applicable requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder.
Such counsel will also provide the following:
Such counsel has participated in conferences with officers and other representatives of the
Company and the Parent Guarantor, representatives of the independent public accountants of the
Company and the Parent Guarantor and your representatives at which the contents of the Registration
Statement, the Pricing Disclosure Package and the Prospectus and related matters were discussed.
Although such counsel did not independently verify, is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Pricing Disclosure Package or the Prospectus or the responsiveness of
such statements to legal requirements (except to the extent stated in the last sentence of
paragraph 5 above and in paragraph 10 above), such counsel advises you that, on the basis of the
foregoing, no facts have come to its attention that lead it to believe that (A) the Registration
Statement, as of the time it became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) the Pricing Disclosure Package, as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, or (C) the Prospectus, as of the issue date thereof and as of the date hereof,
contained or contains any untrue statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such counsel has not been
asked to comment and expresses no statement or belief with respect to (i) the financial statements
and related schedules (including the notes thereto and the independent registered public accounting
firm’s reports thereon), (ii) the other financial or accounting data, or (iii) the Statements of
Eligibility under the Trust Indenture Act of a corporation designated to act as trustee on Form
T-1, in each case included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package or the Prospectus).
Annex II(b)-3
ANNEX II(b)
FORM OF OPINION OF CAYMAN ISLANDS COUNSEL
FOR THE COMPANY AND THE PARENT GUARANTOR
1.1 Each of the Parent Guarantor, the Company, Noble Asset Company Limited and Noble
International Limited (the “Cayman Subsidiaries”) is an exempted company duly incorporated and
validly existing and in good standing under the laws of the Cayman Islands and the Company has the
corporate power and authority to own and operate its property and to conduct its business as
described in the discussion set forth under the caption “Noble Corporation” in the Prospectus.
1.2 The Company and the Parent Guarantor have full power and authority under their respective
Memorandums and Articles of Association to enter into, execute and perform their obligations under
each of the Transaction Documents to which it is a party, and in the case of the Company, to enter
into, execute and perform its obligations under the Notes, including the issue of the Notes
pursuant to the Indenture.
1.3 The execution and delivery of the Transaction Documents by the Company and the Parent
Guarantor, as applicable, and the issue and offer of the Notes by the Company, and the performance
of their obligations thereunder, do not conflict with or result in a breach of any of the terms or
provisions of their respective Memorandums and Articles of Association or any law, public rule or
regulation applicable to the Company or the Parent Guarantor in the Cayman Islands currently in
force.
1.4 The execution, delivery and performance of the Transaction Documents has been authorized
by and on behalf of the Company and the Parent Guarantor, as applicable, the Transaction Documents
have been duly executed and delivered on behalf of the Company and the Parent Guarantor, as
applicable, and constitute the legal, valid and binding obligations of the Company and the Parent
Guarantor, as applicable, enforceable in accordance with their terms.
1.5 The Notes have been authorized by the Company and the Parent Guarantor, respectively, and
when authenticated in the manner set forth in the Indenture and delivered against due payment
therefor will be duly executed and delivered and will constitute the legal, valid and binding
obligations of the Company enforceable in accordance with their terms.
1.6 No authorizations, consents, approvals, licenses, validations or exemptions are required
by law from any governmental authorities or agencies or other official bodies in the Cayman Islands
in connection with:
1.6.1 the execution or delivery of the Transaction Documents by the Company and the Parent
Guarantor, as applicable;
1.6.2 subject to the payment of stamp duty, the enforcement of the Transaction Documents
against the Company or the Parent Guarantor, as applicable;
Annex II(c)-1
1.6.3 the offering, execution, authentication, allotment, issue or delivery of the
Notes;
1.6.4 the performance by the Company and the Parent Guarantor, as applicable, of their
obligations under the Notes and the Transaction Documents;
1.6.5 the payment of the principal and interest and any other amounts under the Notes.
1.7 No taxes, fees or charges (other than stamp duty) are payable (either by direct assessment
or withholding) to the government or other taxing authority in the Cayman Islands under the laws of
the Cayman Islands in respect of:
1.7.1 the execution or delivery of the Transaction Documents or the Notes;
1.7.2 the enforcement of the Transaction Documents or the Notes;
1.7.3 payments made under, or pursuant to, the Transaction Documents; or
1.7.4 the issue, transfer or redemption of the Notes.
The Cayman Islands currently have no form of income, corporate or capital gains tax and no
estate duty, inheritance tax or gift tax.
1.8 The courts of the Cayman Islands will observe and give effect to the choice of New York
law as the governing law of the Transaction Documents and the Notes.
1.9 Based solely on our inspection of the Register of Writs and Other Originating process in
the Grand Court of the Cayman Islands from the respective dates of incorporation of the Company and
the Parent Guarantor, there were no actions or petitions pending against the Company or the Parent
Guarantor in the courts of the Cayman Islands as at close of business in the Cayman Islands on
[
l
] November 2008.
1.10 Although there is no statutory enforcement in the Cayman Islands of judgments obtained in
the State of New York, the courts of the Cayman Islands will recognize a foreign judgment as the
basis for a claim at common law in the Cayman Islands provided such judgment:
1.10.1 is given by a competent foreign court;
1.10.2 imposes on the judgment debtor a liability to pay a liquidated sum for which the
judgment has been given;
1.10.3 is final;
1.10.4 is not in respect of taxes, a fine or a penalty; and
1.10.5 was not obtained in a manner and is not of a kind the enforcement of which is contrary
to the public policy of the Cayman Islands.
Annex II(c)-2
1.11 It is not necessary to ensure the legality, validity, enforceability or admissibility in
evidence of the Transaction Documents or the Notes that any document be filed, recorded or enrolled
with any governmental authority or agency or any official body in the Cayman Islands.
1.12 Based solely on our review of the Memorandum and Articles of the Parent Guarantor, the
authorized share capital of the Company is US$55,000,000 divided into 400,000,000 Ordinary Shares
of a par value of US$0.10 each and 15,000,000 Preferred Shares of a par value of US$1.00 each and
based solely on the Officer’s Certificate, the issued shares in the capital of the Company is [*]
Ordinary Shares of US$0.10 each and [*] Preferred Shares of US$1.00.
1.13 Based solely on our review of the Register of Members of the Company, the issued shares
in the capital of the NHIL (the “NHIL Issued Shares”) is 10,000 shares of US$1.00 each and the
Company is the registered holder of all of the NHIL Issued Shares. The NHIL Issued Shares have been
duly authorized and validly issued and, assuming that payment for such NHIL Issued Shares has been
received in full in accordance with the terms of issue, are fully paid.
1.14 Based solely on our review of the Register of Members of Noble Asset Company Limited
(“NACL”), the issued shares in the capital of NACL (the “NACL Issued Shares”) is 5,000 shares of
US$1.00 each and Noble Drilling Holding LLC is the registered holder of all of the NHIL Issued
Shares. The NACL Issued Shares have been duly authorized and validly issued and, assuming that
payment for such NACL Issued Shares has been received in full in accordance with the terms of
issue, are fully paid.
1.15 Based solely on our review of the Register of Members of Noble International Limited
(“NIL”), the issued share in the capital of NIL (the “NIL Issued Share”) is 12,000 shares of
US$1.00 each and Noble Drilling Holding LLC is the registered holder of all of the NIL Issued
Shares. The NIL Issued Shares have been duly authorized and validly issued and, assuming that
payment for such NIL Issued Shares has been received in full in accordance with the terms of issue,
is fully paid.
Annex II(c)-3
Exhibit 4.1
NOBLE HOLDING INTERNATIONAL LIMITED
ISSUER
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
TRUSTEE
INDENTURE
DATED AS OF NOVEMBER 21, 2008
SENIOR DEBT SECURITIES
(ISSUABLE IN SERIES)
NOBLE HOLDING INTERNATIONAL LIMITED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF NOVEMBER 21, 2008
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Section of
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Trust Indenture
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Section(s) of
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Act of 1939
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Indenture
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Section 310(a)(1)
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609
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(a)(2)
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609
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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608, 610
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Section 311(a)
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613
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(b)
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613
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(c)
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Not Applicable
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Section 312(a)
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701, 702(a)
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(b)
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702(b)
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(c)
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702(b)
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Section 313(a)
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703(a)
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(b)
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703(a)
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(c)
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703(a)
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(d)
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703(b)
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Section 314(a)
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704, 1005
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(b)
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Not Applicable
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(c)(1)
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103
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(c)(2)
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103
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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103
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Section 315(a)
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601(a)
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(b)
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602
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(c)
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601(b)
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(d)
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601(c)
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(d)(1)
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601(a)(1)
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(d)(2)
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601(c)(2)
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(d)(3)
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601(c)(3)
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(e)
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514
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Section 316(a)(1)(A)
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502, 512
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(a)(1)(B)
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513
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(a)(2)
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Not Applicable
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(a) last sentence
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101
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(b)
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508
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Section 317(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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Section 318(a)
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108
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(1)
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
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i
TABLE OF CONTENTS
1
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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SECTION 101. Definitions
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1
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Act
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1
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Additional Amounts
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1
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Affiliate
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2
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Agent Members
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2
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Authenticating Agent
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2
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Authorized Newspaper
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2
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Board of Directors
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2
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Board Resolution
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2
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Business Day
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2
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Commission
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2
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Company
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2
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Company Request
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2
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Company Order
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2
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Conversion Event
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2
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Corporate Trust Office
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2
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Default
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2
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Defaulted Interest
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3
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Depositary
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3
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Dollar
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3
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Event of Default
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3
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Exchange Rate
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3
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Holder
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3
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Indenture
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3
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Interest
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3
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Interest Payment Date
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3
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Judgment Currency
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3
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Maturity
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3
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Officers’ Certificate
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3
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Opinion of Counsel
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3
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Original Issue Discount Security
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3
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Outstanding
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3
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Paying Agent
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4
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Person
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4
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Place of Payment
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4
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Predecessor Security
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4
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Redemption Date
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4
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Redemption Price
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5
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Regular Record Date
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5
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Required Currency
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5
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Responsible Officer
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5
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Securities
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5
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Security Custodian
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5
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Security Register
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5
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Special Record Date
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5
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Stated Maturity
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5
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Subsidiary
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5
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Trustee
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5
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Trust Indenture Act
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5
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United States
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5
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1
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Note: This table of contents shall not, for any
purpose be deemed to be a part of the Indenture.
|
ii
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United States Alien
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6
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U.S. Government Obligations
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6
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Vice President
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6
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Wholly Owned Subsidiary
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6
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Yield to Maturity
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6
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SECTION 102. Incorporation by Reference of Trust Indenture Act
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6
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SECTION 103. Compliance Certificates and Opinions
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6
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SECTION 104. Form of Documents Delivered to Trustee
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7
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SECTION 105. Acts of Holders; Record Dates
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7
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SECTION 106. Notices, Etc., to Trustee and Company
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8
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SECTION 107. Notice to Holders; Waiver
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8
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SECTION 108. Conflict With Trust Indenture Act
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9
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SECTION 109. Effect of Headings and Table of Contents
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9
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SECTION 110. Successors and Assigns
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9
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SECTION 111. Separability Clause
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9
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SECTION 112. Benefits of Indenture
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9
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SECTION 113. Governing Law
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9
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SECTION 114. Legal Holidays
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9
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|
SECTION 115. Corporate Obligation
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10
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SECTION 116. Force Majeure
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|
10
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|
|
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|
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SECTION 117. Waiver of Jury Trial
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|
|
10
|
|
|
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|
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ARTICLE TWO SECURITY FORMS
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10
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|
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SECTION 201. Forms Generally
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|
10
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|
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|
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SECTION 202. Form of Trustee’s Certificate of Authentication
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|
10
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|
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|
|
SECTION 203. Securities in Global Form
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11
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ARTICLE THREE THE SECURITIES
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13
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|
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|
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|
|
SECTION 301. Amount Unlimited; Issuable in Series
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13
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|
SECTION 302. Denominations
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|
15
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|
|
|
|
|
|
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|
SECTION 303. Execution, Authentication, Delivery and Dating
|
|
|
15
|
|
|
|
|
|
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|
SECTION 304. Temporary Securities
|
|
|
16
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|
iii
|
|
|
|
|
|
|
SECTION 305. Registration, Registration of Transfer and Exchange
|
|
|
16
|
|
|
|
|
|
|
|
|
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
17
|
|
|
|
|
|
|
|
|
SECTION 307. Payment of Interest; Interest Rights Preserved
|
|
|
18
|
|
|
|
|
|
|
|
|
SECTION 308. Person Deemed Owners
|
|
|
19
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|
|
|
|
|
|
|
|
SECTION 309. Cancellation
|
|
|
19
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|
|
|
|
|
|
|
|
SECTION 310. Computation of Interest
|
|
|
19
|
|
|
|
|
|
|
|
|
SECTION 311. CUSIP Numbers
|
|
|
19
|
|
|
|
|
|
|
|
|
ARTICLE FOUR SATISFACTION AND DISCHARGE
|
|
|
19
|
|
|
|
|
|
|
|
|
SECTION 401. Satisfaction and Discharge of Indenture
|
|
|
19
|
|
|
|
|
|
|
|
|
SECTION 402. Application of Trust Money
|
|
|
21
|
|
|
|
|
|
|
|
|
SECTION 403. Discharge of Liability on Securities of Any Series
|
|
|
21
|
|
|
|
|
|
|
|
|
SECTION 404. Reinstatement
|
|
|
21
|
|
|
|
|
|
|
|
|
ARTICLE FIVE REMEDIES
|
|
|
22
|
|
|
|
|
|
|
|
|
SECTION 501. Events of Default
|
|
|
22
|
|
|
|
|
|
|
|
|
SECTION 502. Acceleration of Maturity; Rescission and Annulment
|
|
|
23
|
|
|
|
|
|
|
|
|
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
24
|
|
|
|
|
|
|
|
|
SECTION 504. Trustee May File Proofs of Claim
|
|
|
24
|
|
|
|
|
|
|
|
|
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons
|
|
|
25
|
|
|
|
|
|
|
|
|
SECTION 506. Application of Money Collected
|
|
|
25
|
|
|
|
|
|
|
|
|
SECTION 507. Limitation on Suits
|
|
|
26
|
|
|
|
|
|
|
|
|
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
26
|
|
|
|
|
|
|
|
|
SECTION 509. Restoration of Rights and Remedies
|
|
|
26
|
|
|
|
|
|
|
|
|
SECTION 510. Rights and Remedies Cumulative
|
|
|
27
|
|
|
|
|
|
|
|
|
SECTION 511. Delay or Omission Not Waiver
|
|
|
27
|
|
|
|
|
|
|
|
|
SECTION 512. Control by Holders
|
|
|
27
|
|
|
|
|
|
|
|
|
SECTION 513. Waiver of Past Defaults
|
|
|
27
|
|
|
|
|
|
|
|
|
SECTION 514. Undertaking for Costs
|
|
|
28
|
|
|
|
|
|
|
|
|
SECTION 515. Waiver of Stay or Extension Laws
|
|
|
28
|
|
iv
|
|
|
|
|
|
|
ARTICLE SIX THE TRUSTEE
|
|
|
28
|
|
|
|
|
|
|
|
|
SECTION 601. Certain Duties and Responsibilities
|
|
|
28
|
|
|
|
|
|
|
|
|
SECTION 602. Notice of Defaults
|
|
|
29
|
|
|
|
|
|
|
|
|
SECTION 603. Certain Rights of Trustee
|
|
|
29
|
|
|
|
|
|
|
|
|
SECTION 604. Not Responsible for Recitals or Issuance of Securities
|
|
|
30
|
|
|
|
|
|
|
|
|
SECTION 605. May Hold Securities
|
|
|
30
|
|
|
|
|
|
|
|
|
SECTION 606. Money Held in Trust
|
|
|
30
|
|
|
|
|
|
|
|
|
SECTION 607. Compensation and Reimbursement
|
|
|
31
|
|
|
|
|
|
|
|
|
SECTION 608. Disqualification; Conflicting Interests
|
|
|
31
|
|
|
|
|
|
|
|
|
SECTION 609. Corporate Trustee Required; Eligibility
|
|
|
32
|
|
|
|
|
|
|
|
|
SECTION 610. Resignation and Removal; Appointment of Successor
|
|
|
32
|
|
|
|
|
|
|
|
|
SECTION 611. Acceptance of Appointment by Successor
|
|
|
33
|
|
|
|
|
|
|
|
|
SECTION 612. Merger, Conversion, Consolidation or Succession to Business
|
|
|
34
|
|
|
|
|
|
|
|
|
SECTION 613. Preferential Collection of Claims Against Company
|
|
|
34
|
|
|
|
|
|
|
|
|
SECTION 614. Appointment of Authenticating Agent
|
|
|
34
|
|
|
|
|
|
|
|
|
ARTICLE SEVEN HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
35
|
|
|
|
|
|
|
|
|
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
|
|
|
35
|
|
|
|
|
|
|
|
|
SECTION 702. Preservation of Information; Communications to Holders
|
|
|
35
|
|
|
|
|
|
|
|
|
SECTION 703. Reports by Trustee
|
|
|
36
|
|
|
|
|
|
|
|
|
SECTION 704. Reports by the Company
|
|
|
36
|
|
|
|
|
|
|
|
|
ARTICLE EIGHT CONSOLIDATION, AMALGAMATION, CONVEYANCE, TRANSFER OR LEASE
|
|
|
36
|
|
|
|
|
|
|
|
|
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms
|
|
|
36
|
|
|
|
|
|
|
|
|
SECTION 802. Successor Person Substituted for Company
|
|
|
37
|
|
|
|
|
|
|
|
|
ARTICLE NINE SUPPLEMENTAL INDENTURES
|
|
|
37
|
|
|
|
|
|
|
|
|
SECTION 901. Supplemental Indentures Without Consent of Holders
|
|
|
37
|
|
|
|
|
|
|
|
|
SECTION 902. Supplemental Indentures With Consent of Holders
|
|
|
38
|
|
|
|
|
|
|
|
|
SECTION 903. Execution of Supplemental Indentures
|
|
|
39
|
|
|
|
|
|
|
|
|
SECTION 904. Effect of Supplemental Indentures
|
|
|
39
|
|
v
|
|
|
|
|
|
|
SECTION 905. Conformity With Trust Indenture Act
|
|
|
39
|
|
|
|
|
|
|
|
|
SECTION 906. Reference in Securities to Supplemental Indentures
|
|
|
39
|
|
|
|
|
|
|
|
|
ARTICLE TEN COVENANTS
|
|
|
39
|
|
|
|
|
|
|
|
|
SECTION 1001. Payment of Principal, Premium and Interest
|
|
|
39
|
|
|
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SECTION 1002. Maintenance of Office or Agency
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SECTION 1003. Money for Securities Payments to be Held in Trust
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SECTION 1004. Existence
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SECTION 1005. Statement by Officers as to Default
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SECTION 1006. Waiver of Certain Covenants
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SECTION 1007. Additional Amounts
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
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SECTION 1101. Applicability of Article
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SECTION 1102. Election to Redeem; Notice to Trustee
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SECTION 1103. Selection by Trustee of Securities to be Redeemed
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SECTION 1104. Notice of Redemption
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SECTION 1105. Deposit of Redemption Price
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SECTION 1106. Securities Payable on Redemption Date
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SECTION 1107. Securities Redeemed in Part
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ARTICLE TWELVE SINKING FUNDS
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SECTION 1201. Applicability of Article
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
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SECTION 1203. Redemption of Securities for Sinking Fund
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ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES
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SECTION 1301. Purposes for Which Meetings May Be Called
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SECTION 1302. Call, Notice and Place of Meetings
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SECTION 1303. Persons Entitled to Vote at Meetings
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SECTION 1304. Quorum; Action
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SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings
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vi
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SECTION 1306. Counting Votes and Recording Action of Meetings
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vii
INDENTURE, dated as of November 21, 2008, between NOBLE HOLDING INTERNATIONAL LIMITED, a
Cayman Islands exempted company limited by shares (herein called the “Company”), having its
principal office at c/o Maples and Calder, P.O. Box 309 GT, Ugland
House South Church Street Georgetown, Grand Cayman, Cayman Islands,
BWI and THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A., a national banking association duly organized and existing
under the laws of the United States of America, as Trustee (herein called the “Trustee”), the
office of the Trustee at which at the date hereof its corporate trust business is principally
administered being 601 Travis Street, 18th Floor, Houston, Texas 77002, Attention: Corporate Trust
Administration.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), to be issued in one or more series as provided in
this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act and the rules and
regulations of the Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
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(1)
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the terms defined in this Article One have the meanings assigned to them in
this Article One and include the plural as well as the singular;
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(2)
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all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United States,
and, except as otherwise herein expressly provided, the term “generally accepted
accounting principles” with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the United States at
the date of such computation; and
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(3)
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the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
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Certain terms, used principally in Article Six, are defined in Section 102.
“Act,” when used with respect to any Holder, has the meaning specified in Section 105.
“Additional Amounts” means any additional amounts that are required by the express terms of a
Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant
thereto, to be paid by the
1
Company with respect to certain taxes, assessments or other governmental charges imposed on certain
Holders and that are owing to such Holders.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Agent Members” has the meaning specified in Section 203.
“Authenticating Agent” means any Person, which may include the Company, authorized by the
Trustee to act on behalf of the Trustee pursuant to Section 614 to authenticate Securities of one
or more series.
“Authorized Newspaper” means a newspaper, in the English language or in an official language
of the country of publication, customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be made in the same
or in different newspapers in the same city meeting the foregoing requirements and in each case on
any Business Day.
“Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in the Place of Payment or the city in which the Corporate Trust Office
is located are authorized or obligated by law or executive order to close.
“Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” and “Company Order” mean, respectively, a written request or order signed in
the name of the Company by (A) (i) a director of the Company or (ii) its Chairman of the Board, its
Chief Executive Officer, its President or a Vice President and (B) a director (who shall be in
addition to any director who signs pursuant to clause(A) (i)), its Treasurer, an Assistant
Treasurer, its Controller, an Assistant Controller, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
“Conversion Event” has the meaning specified in Section 501.
“Corporate Trust Office” means the designated office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office at the date
hereof is that indicated in the introductory paragraph of this Indenture.
“Default” means, with respect to the Securities of any series, any event, act or condition
that is, or after notice or the passage of time or both would be, an Event of Default with respect
to Securities of such series.
2
“Defaulted Interest” has the meaning specified in Section 307.
“Depositary” means, with respect to the Securities of any series issuable or issued in whole
or in part in a global form, the Person designated as Depositary by the Company pursuant to Section
301 with respect to the Securities of such series, until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall
mean or include each Person who is then a Depositary hereunder, and if at any time there is more
than one such person, “Depositary” as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of that series.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and private debts.
“Event of Default” has the meaning specified in Section 501.
“Exchange Rate” has the meaning specified in Section 302.
“Holder,” when used with respect to any Security, means the Person in whose name the Security
is registered in the Security Register.
“Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301 and the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument.
“Interest,” when used with respect to an Original Issue Discount Security that by its terms
bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
“Judgment Currency” has the meaning specified in Section 506.
“Maturity” when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officers’ Certificate” means a certificate signed by (A) (i) a director of the Company or
(ii) the Chairman of the Board, the Chief Executive Officer, the President or a Vice President, and
(B) a director (who shall be in addition to any director who signs pursuant to clause (A) (i)), the
Treasurer, the Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary of the Company, and delivered to the Trustee, which certificate shall be in
compliance with Section 103 hereof.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee
of the Company, rendered, if applicable, in accordance with Section 314(c) of the Trust Indenture
Act, which opinion shall be in compliance with Section 103 hereof.
“Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
“Outstanding,” when used with respect to Securities of a series, means as of the date of
determination, all Securities of such series theretofore authenticated and delivered under this
Indenture, except:
3
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(i)
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Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
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(ii)
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Securities for whose payment or redemption money in the necessary amount has
been theretofore irrevocably deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and
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(iii)
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Securities that have been paid pursuant to Section 306 or in exchange for or
in lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid obligations of the
Company;
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provided
, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a quorum
is present at a meeting of Holders of Securities, (a) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for such
purposes shall be the principal amount thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (b) the principal amount of a Security denominated in a foreign
currency shall be the U.S. dollar equivalent, determined by the Company on the date
of original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent, determined on the
date of original issuance of such Security, of the amount determined as provided in
(a) above), of such Security and (c) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such determination
as to the presence of a quorum, only Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
|
“Paying Agent” means any Person, which may include the Company, authorized by the Company to
pay the principal of, premium (if any) or interest on or any Additional Amounts with respect to any
one or more series of Securities on behalf of the Company.
“Person” means any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof or other entity of any
kind.
“Place of Payment,” when used with respect to the Securities of any series, means the place or
places where the principal of, premium (if any) or interest on or any Additional Amounts with
respect to the Securities of such series are payable as specified in accordance with Section 301
subject to the provisions of Section 1002.
“Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to the terms of such Security and this Indenture.
4
“Redemption Price,” when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to the terms of such Security and this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301, or, if not
so specified, the first day of the calendar month of the month of such Interest Payment Date if
such Interest Payment Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment Date is the first day
of a calendar month, whether or not such day shall be a Business Day.
“Required Currency” has the meaning specified in Section 506.
“Responsible Officer,” when used with respect to the Trustee, means any officer of the Trustee
with direct responsibility for the administration of this Indenture and also means, with respect to
a particular corporate trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
“Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
“Security Custodian” means, with respect to Securities of a series issued in global form, the
Trustee for Securities of such series, acting in its capacity as custodian with respect to the
Securities of such series, or any successor entity thereto.
“Security Register” and “Security Registrar” have the respective meanings specified in Section
305.
“Special Record Date” for the payment of any Defaulted Interest on the Securities of any
series means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity,” when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, as to any Person, a corporation or other entity of which at least a
majority of the outstanding stock or other beneficial interests having by the terms thereof
ordinary voting power to elect a majority of the full board of directors or other governing body of
such corporation or other entity (irrespective of whether or not at the time stock or other
beneficial interests of any other class or classes of such corporation or other entity shall have
or might have voting power by reason of the happening of any contingency) is at the time owned by
such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed, except as provided in Section 905;
provided
, however, that, in
the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“United States” means the United States of America (including the States and the District of
Columbia) and its “possessions,” which include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
5
“United States Alien” means any Person who, for United States federal income tax purposes, is
a foreign corporation, a nonresident alien individual, a nonresident alien or foreign fiduciary of
an estate or trust, or a foreign partnership.
“U.S. Government Obligations” has the meaning specified in Section 401.
“Vice President,” when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president”.
“Wholly Owned Subsidiary” means, as to any Person, a corporation or other entity of which all
of the outstanding stock or other beneficial interests having by the terms thereof ordinary voting
power to elect a majority of the full board of directors or other governing body of such
corporation or other entity (irrespective of whether or not at the time stock or other beneficial
interests of any other class or classes of such corporation or other entity shall have or might
have voting power by reason of the happening of any contingency) is at the time owned by such
Person, or by one or more Wholly Owned Subsidiaries of such Person, or by such Person and one or
more Wholly Owned Subsidiaries of such Person.
“Yield to Maturity,” when used with respect to any Original Issue Discount Security, means the
yield to maturity, if any, set forth on the face thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms used in this Indenture have the following meanings:
“Bankruptcy Act” means the Bankruptcy Act or Title 11 of the United States Code.
“indenture securities” means the Securities.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company or any other obligor on the
Securities.
All terms used in this Indenture that are defined by the Trust Indenture Act, defined by a
Trust Indenture Act reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any application or request by
the Company to the Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include
6
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(1)
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a statement that each Person signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
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(2)
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a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
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(3)
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a statement that, in the opinion of each such Person, such Person has made such
examination or investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has been complied
with; and
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(4)
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a statement as to whether, in the opinion of each such Person, such condition
or covenant has been complied with.
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SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer or director of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer or director knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or representations by, an officer,
officers or director of the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as
the “Act” of the Holders signing such instrument or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such agent, or the holding
of any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section 105. The record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1306.
The Company may set a record date for purposes of determining the identity of Holders of
Securities entitled to vote or consent to any action by vote or consent authorized or permitted
under this Indenture. If a record date is fixed, those Persons who were Holders of Outstanding
Securities at such record date (or their duly designated proxies), and only those Persons, shall be
entitled with respect to such Securities to take such action by vote or consent or to revoke any
vote or consent previously given, whether or not such Persons continue to be Holders after such
record date. Promptly after any record date is set pursuant to this paragraph, the Company, at its
own expense,
7
shall cause notice thereof to be given to the Trustee in writing in the manner provided in
Section 106 and to the relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) In determining whether the Holders of the requisite principal amount of Securities have
given any request, demand, authorization, direction, notice, consent or waiver under this
Indenture, the principal amount of an Original Issue Discount Security that may be counted in
making such determination and that shall be deemed to be Outstanding for such purposes shall be
equal to the amount of the principal thereof that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 at the time the taking of such action
by the Holders of such requisite principal amount is evidenced to the Trustee for such Securities.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security. Any consent
or waiver of the Holder of any Security shall be irrevocable for a period of six months after the
date of execution thereof, but otherwise any such Holder or subsequent Holder may revoke the
request, demand, authorization, direction, notice, consent or other Act as to his Security or
portion of his Security;
provided
, however, that such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
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(1)
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the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust Administration, or
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(2)
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the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company, Attention:
Corporate Secretary.
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SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service, or by reason of any other cause
it shall be impracticable to give such notice to Holders of Securities by mail, then such
notification as shall be made with the
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approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In
any case in which notice to Holders of Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder of a Security, shall
affect the sufficiency of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any provision of the Trust
Indenture Act or another provision hereof required to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such provision of the Trust Indenture Act shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the former provision shall be deemed to apply to this Indenture as
so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether or not so expressed.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person
any benefit or any legal or equitable right, remedy or claim under this Indenture, other than the
parties hereto and their successors hereunder, any Authenticating Agent, Paying Agent or Security
Registrar and the Holders.
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal of, premium (if any) and
interest on or any Additional Amounts with respect to Securities of any series need not be made at
such Place of Payment on such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity,
provided
that no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
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SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any incorporator, subscriber to the
capital shares or capital stock, director, member, stockholder, officer, director or employee of
the Company or the Trustee or of any predecessor or successor of the Company or the Trustee with
respect to the Company’s obligations on the Securities or the obligations of the Company or the
Trustee under this Indenture or any certificate or other writing delivered in connection herewith.
SECTION 116. Force Majeure.
Subject to Section 601, in no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts that are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
SECTION 117. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in fully registered form and in substantially such form
or forms (including temporary or permanent global form) as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the director(s) or officers
of the Company executing such Securities, as evidenced by their execution of the Securities. If
temporary Securities of any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. A copy of the Board Resolution
establishing the form or forms of Securities of any series (or any such temporary global Security)
shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities (or any such temporary global
Security).
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the director(s) or officers executing
such Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee’s Certificate of Authentication.
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The Trustee’s certificate of authentication shall be in substantially the following form:
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“This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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The Bank of New York Mellon Trust Company, N.A.
as Trustee
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By:
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Authorized Signatory”
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SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated by Section 301, then,
notwithstanding clause (10) of Section 301 and the provisions of Section 302, any such Security
shall represent such of the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding Securities from time to
time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges or redemptions. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified in such Security or in a Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person or Persons
specified in such Security or in the applicable Company Order. With respect to the Securities of
any series that are represented by a Security in global form, the Company authorizes the execution
and delivery by the Trustee of a letter of representations or other similar agreement or instrument
in the form customarily provided for by the Depositary appointed with respect to such global
Security. Any Security in global form may be deposited with the Depositary or its nominee, or may
remain in the custody of the Security Custodian therefor pursuant to an agreement between the
Trustee and the Depositary. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need not comply with
Section 103 and need not be accompanied by an Opinion of Counsel.
Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Security issued in global form held on their behalf by the
Depositary, or the Security Custodian as its custodian, or under such global Security, and the
Depositary may be treated by the Company, the Security Custodian and any agent of the Company or
the Trustee as the absolute owner of such global Security for all purposes whatsoever.
Notwithstanding the foregoing, (i) the registered holder of a Security of any series issued in
global form may grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action that a Holder of such
series is entitled to take under this Indenture or the Securities of such series and (ii) nothing
herein shall prevent the Company, the Security Custodian or any agent of the Company or the
Security Custodian, from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a beneficial owner of any
Security.
Notwithstanding Section 305, except as otherwise specified as contemplated by Section 301, any
permanent global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Security are entitled to exchange such
interest for Securities of such series and of like tenor and principal amount of another authorized
form and denomination, as specified as contemplated by Section 301, then without unnecessary delay
but in any event not later than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Securities of that series in an aggregate principal
amount equal to the principal amount of such permanent global Security, executed by the Company. On
or after the earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered from time to time in accordance with instructions given to the
Trustee and the Depositary (which instructions shall be in writing but need not comply with Section
103 or be accompanied by an Opinion of Counsel) by the Depositary or such other depositary as shall
be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for
such purpose, to be exchanged, in whole or in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of other definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such permanent global
Security to be exchanged;
provided
, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities of that series is
to be redeemed and ending on the relevant Redemption Date.
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Promptly following any such exchange in part, such permanent global Security marked to
evidence the partial exchange shall be returned by the Trustee to the Depositary or such other
depositary referred to above in accordance with the instructions of the Company referred to above.
If a definitive Security is issued in exchange for any portion of a permanent global Security after
the close of business at the office or agency where such exchange occurs on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as
the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to whom interest in respect of such
portion of such permanent global Security is payable in accordance with the provisions of this
Indenture.
Notwithstanding Section 305, except as otherwise specified as contemplated by Section 301,
transfers of a Security issued in global form shall be limited to transfers of such global Security
in whole, but not in part, to the Depositary, its successors or their respective nominees.
Interests of beneficial owners in a Security issued in global form may be transferred in accordance
with the rules and procedures of the Depositary. Securities of any series shall be transferred to
all beneficial owners of a global Security of such series in exchange for their beneficial
interests in that global Security if, and only if, either (1) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for the global Security of such series or
at any time the Depositary ceases to be registered under the Exchange Act, (2) an Event of Default,
or an event which, with notice or the lapse of time or both, would constitute an Event of Default,
has occurred with respect to such series and is continuing and the Security Registrar has received
a request from the Depositary or the Trustee to issue Securities of such series in lieu of all or a
portion of that global Security (in which case the Company shall deliver Securities of such series
within 30 days of such request) or (3) the Company determines in its sole discretion that a global
Security shall be exchangeable for definitive Securities in registered form.
In connection with any transfer of a portion of the beneficial interest in a global Security
of any series to beneficial owners pursuant to this Section 203, the Security Registrar shall
reflect on its books and records the date and a decrease in the principal amount of the global
Security of that series in an amount equal to the principal amount of the beneficial interest in
the global Security of that series to be transferred, and the Company shall execute, and the
Trustee upon receipt of a Company Order for the authentication and delivery of Securities of that
series shall authenticate and deliver, one or more Securities of the same series of like tenor and
amount.
In connection with the transfer of all the beneficial interests in a global Security of any
series to beneficial owners pursuant to this Section 203, the global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the global Security, an equal aggregate principal amount of Securities of
that series of authorized denominations.
Neither the Company nor the Trustee will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, Securities of any series by the
Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company nor the Trustee shall be liable for any delay by the related
global Security Holder or the Depositary in identifying the beneficial owners, and each such Person
may conclusively rely on, and shall be protected in relying on, instructions from such global
Security Holder or the Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence of Section 303 shall apply to any Security in global form
if such Security was never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not comply with Section
103 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise specified as
contemplated by Section 301, payment of principal of, premium (if any) and interest on or any
Additional Amounts with respect to any Security in permanent global form shall be made to the
Person or Persons specified therein.
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Notwithstanding the provisions of Section 308 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company or of the Trustee shall treat a
Person as the Holder of such principal amount of Outstanding Securities represented by a global
Security as shall be specified in a written statement, if any, of the Holder of such global
Security which is produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or permanent form. Permanent global
Securities will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any series,
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(1)
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the title of the Securities of such series (which shall distinguish the
Securities of the series from all other Securities);
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(2)
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any limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Section 203, 304, 305, 306, 906 or
1107);
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(3)
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whether Securities of such series are to be issuable initially in temporary
global form and whether any Securities of such series are to be issuable in permanent
global form and, if so, whether beneficial owners of interests in any such global
Security may exchange such interests for Securities of such series and of like tenor of
any authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Sections 203 or 305, and
the Depositary for any global Security or Securities of such series;
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(4)
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the manner in which any interest payable on a temporary global Security of such
series on any Interest Payment Date will be paid if other than in the manner provided
in Section 304;
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(5)
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the date or dates on which the principal or premium (if any) of the Securities
of such series is payable or the method of determination thereof;
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(6)
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the rate or rates, or the method of determination thereof, at which the
Securities of such series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall be payable, the
date or dates from which such interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and, if other than as set forth in Section 101,
the Regular Record Date for the interest payable on any Securities on any Interest
Payment Date;
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(7)
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the place or places where, subject to the provisions of Section 1002, the
principal of, premium (if any) and interest on or any Additional Amounts with respect
to the Securities of such series shall be payable;
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(8)
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the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which
Securities of such series may be
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redeemed, in whole or in part, at the option of the Company, if the Company is to
have that option, and the manner in which the Company must exercise any such option,
if different from those set forth herein;
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(9)
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the obligation, if any, of the Company to redeem or purchase Securities of such
series pursuant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and conditions
upon which, Securities of such series shall be redeemed or purchased in whole or in
part pursuant to such obligation;
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(10)
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the denomination in which any Securities of that series shall be issuable, if
other than denominations of $1,000 and any integral multiple thereof;
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(11)
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the currency or currencies (including composite currencies), if other than
Dollars, or the form, including equity securities, other debt securities (including
Securities), warrants or any other securities or property of the Company or any other
Person, in which payment of the principal of, premium (if any) and interest on or any
Additional Amounts with respect to the Securities of such series shall be payable;
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(12)
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if the principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of such series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including composite
currencies) other than that in which the Securities are stated to be payable, the
currency or currencies (including composite currencies) in which payment of the
principal of, premium (if any) and interest on or any Additional Amounts with respect
to Securities of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such election is to be
made;
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(13)
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if the amount of payments of principal of, premium (if any) and interest on or
any Additional Amounts with respect to the Securities of such series may be determined
with reference to any commodities, currencies or indices, values, rates or prices or
any other index or formula, the manner in which such amounts shall be determined;
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(14)
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if other than the entire principal amount thereof, the portion of the principal
amount of Securities of such series that shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;
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(15)
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any additional means of satisfaction and discharge of this Indenture with
respect to Securities of such series pursuant to Section 401, any additional conditions
to discharge pursuant to Section 401 or 403 and the application, if any, of Section
403;
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(16)
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any deletions or modifications of or additions to the definitions set forth in
Section 101, Events of Default set forth in Section 501 or covenants of the Company set
forth in Article Ten pertaining to the Securities of such series;
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(17)
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if the Securities of such series are to be convertible into or exchangeable for
equity securities, other debt securities (including Securities), warrants or any other
securities or property of the Company or any other Person, at the option of the Company
or the Holder or upon the occurrence of any condition or event, the terms and
conditions for such conversion or exchange;
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(18)
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whether any of such Securities will be subject to certain optional interest
rate reset provisions;
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(19)
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the additions or changes, if any, to the Indenture with respect to such
Securities as shall be necessary to permit or facilitate the issuance of such
Securities in bearer form, registered or not registrable as to principal, and with or
without interest coupons; and
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(20)
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any other terms of such series.
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All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series that bears interest may
be paid by mailing a check to the address of any Holder as such address shall appear in the
Security Register.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action together with such Board Resolution
shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the
series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Securities, any Securities of a series
denominated in a currency other than Dollars shall be issuable in denominations that are the
equivalent, as determined by the Company by reference to the noon buying rate in The City of New
York for cable transfers for such currency (“Exchange Rate”), as such rate is reported or otherwise
made available by the Federal Reserve Bank of New York, on the applicable issue date for such
Securities, of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by a director, its Chairman of the
Board, its Chief Executive Officer, its President, its Treasurer or one of its Vice Presidents. The
signature of any of these persons on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper director(s) or officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such director position or offices prior to the
authentication and delivery of such Securities or did not hold such position or offices at the date
of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of a series have been established in or pursuant to one
or more Board Resolutions or any other method permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that,
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(a)
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the form of such Securities has been established in conformity with the
provisions of this Indenture;
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(b)
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the terms of such Securities have been established in conformity with the
provisions of this Indenture; and
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(c)
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such Securities when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal,
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valid and binding obligations of the Company, enforceable in accordance with their
terms, except as such enforcement is subject to the effect of (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization or other laws relating to or
affecting creditors’ rights and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
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If such form or terms have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued, in registered form and with such appropriate insertions, omissions, substitutions and other
variations as the director(s) or officers of the Company executing such Securities may determine,
as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute and deliver a Company
Order requesting the Trustee to authenticate and deliver and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive Securities of such
series.
All Outstanding temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one of the offices or
agencies maintained pursuant to Section 1002 a register (the register maintained in such office and
in any other office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities of such series. The Trustee is hereby initially appointed “Security
Registrar” for the purpose of registering Securities and transfers of Securities as herein
provided.
16
Except as set forth in Section 203 or as may be provided pursuant to Section 301, upon
surrender for registration of transfer of any Security of any series at the office or agency in a
Place of Payment for that series, the Company shall execute and deliver a Company Order requesting
the Trustee to authenticate and deliver and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of the same series and of
like tenor, of any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series and of like tenor, of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchange pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of such series selected for redemption
and ending at the close of business on the day of the mailing of the relevant notice of redemption
or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and deliver
a Company Order requesting the Trustee to authenticate and deliver and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company’s request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section 306, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fee and expenses of the Trustee) connected
therewith.
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Every new Security of any series issued pursuant to this Section 306 in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest. Unless otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered to the address of
any Person entitled thereto as such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
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(1)
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The Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause (1)
provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such publication shall not be a
condition precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
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(2)
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The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause (2), such manner of payment shall be
deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section 307, each Security delivered under this
Indenture, upon registration of transfer of, in exchange for or in lieu of, any other Security,
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Person Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of,
premium (if any) and (subject to Sections 305 and 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Securities so delivered shall be promptly canceled by the
Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 309, except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures,
unless the Trustee is otherwise directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year comprising
twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to
Securities of a series, and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with respect to Securities
of such series, when
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(A)
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all Securities of such series theretofore authenticated and
delivered (other than (i) Securities that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 306, and (ii)
Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
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repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation;
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(B)
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with respect to all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation, the Company has
deposited or caused to be deposited with the Trustee under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds in trust solely for the benefit of the Holders of Outstanding
Securities for that purpose, money or U.S. Government Obligations maturing as
to principal and interest in such amounts and at such times as will, together
with the income to accrue thereon, without consideration of any reinvestment
thereof, be sufficient to pay and discharge the entire indebtedness on all
Outstanding Securities of such series not theretofore delivered to the Trustee
for cancellation for principal of, premium (if any) and interest on or any
Additional Amounts with respect to such Securities to the Stated Maturity or
any Redemption Date contemplated by the penultimate paragraph of this Section
401, as the case may be; or
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(C)
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the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 301, to
be applicable to the Securities of such series;
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(2)
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the Company has paid or caused to be paid all other sums payable hereunder by
the Company with respect to the Outstanding Securities of such series;
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(3)
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the Company has complied with any other conditions specified pursuant to
Section 301 to be applicable to the discharge of Securities of such series pursuant to
this Section 401;
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(4)
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the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture with respect to the
Outstanding Securities of such series have been complied with;
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(5)
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if the conditions set forth in Section 401(1)(A) have not been satisfied, and
unless otherwise specified pursuant to Section 301 for the Securities of such series,
the Company has delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit, satisfaction and
discharge and will be subject to United States federal income tax on the same amount
and in the same manner and at the same time as would have been the case if such
deposit, satisfaction and discharge had not occurred; and
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(6)
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no Default or Event of Default with respect to the Securities of such issue
shall have occurred and be continuing on the date of such deposit or, insofar as clause
(5) or (6) of Section 501 is concerned, at any time in the period ending on the 91st
day after the date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
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For the purposes of this Indenture, “U.S. Government Obligations” means direct noncallable
obligations of, or noncallable obligations the payment of principal of and interest on which is
guaranteed by, the United States of America, or to the payment of which obligations or guarantees
the full faith and credit of the United States of America is pledged, or beneficial interests in a
trust the corpus of which consists exclusively of money or such obligations or a combination
thereof.
If any Outstanding Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the trust agreement referred to in subclause (B) of clause (1)
of this Section 401 shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
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Notwithstanding the satisfaction and discharge of this Indenture with respect to the
Outstanding Securities of such series pursuant to this Section 401, the obligations of the Company
to the Trustee under Section 607, the obligations of the Company to any Authenticating Agent under
Section 614 and, except for a discharge pursuant to subclause (A) of clause (1) of this Section
401, the obligations of the Company under Sections 305, 306, 404, 1001 and 1002 and the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal of, premium (if any) and interest on or any
Additional Amounts with respect to Securities of such Securities for the payment of which such
money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section 403 is specified, as contemplated by Section 301, to be applicable to
Securities of any series, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of such series, the obligation of the Company under
this Indenture and the Securities of such series to pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to Securities of such series shall cease,
terminate and be completely discharged, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging such satisfaction and discharge, when
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(1)
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the Company has complied with the provisions of Section 401 of this Indenture
(other than any additional conditions specified pursuant to Sections 301 and 401(3) and
except that the Opinion of Counsel referred to in Section 401(5) shall state that it is
based on a ruling by the Internal Revenue Service or other change since the date hereof
under applicable Federal income tax law) with respect to all Outstanding Securities of
such series,
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(2)
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the Company has delivered to the Trustee a Company Request requesting such
satisfaction and discharge,
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(3)
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the Company has complied with any other conditions specified pursuant to
Section 301 to be applicable to the discharge of Securities of such series pursuant to
this Section 403, and
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(4)
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the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for
relating to the discharge of the indebtedness on the Outstanding Securities of such
series have been complied with.
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Upon the satisfaction of the conditions set forth in this Section 403 with respect to all the
Outstanding Securities of any series, the terms and conditions of such series, including the terms
and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon,
or applicable to, the Company;
provided
that, the Company shall not be discharged from any payment
obligations in respect of Securities of such series which are deemed not to be Outstanding under
clause (iii) of the definition thereof if such obligations continue to be valid obligations of the
Company under applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations
deposited with respect to Securities of any series in accordance with Section 401 by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under
this Indenture with respect to the Securities of such series and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to Section 401 until
such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government
21
Obligations in accordance with Section 401;
provided
, however, that if the Company has made any
payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to
any Securities because of the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically deleted or modified
in or pursuant to the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
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(1)
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default in the payment of any interest on or any Additional Amounts with
respect to any Security of that series when such interest or Additional Amounts become
due and payable, and continuance of such default for a period of 30 days; or
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(2)
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default in the payment of the principal of or premium (if any) on any Security
of that series at its Maturity; or
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(3)
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default in the deposit of any mandatory sinking fund payment, when and as due
by the terms of a Security of that series, and continuance of such default for a period
of 60 days; or
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(4)
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default in the performance or breach of any covenant of the Company in this
Indenture (other than a covenant a default in whose performance or whose breach is
elsewhere in this Section 501 specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series of Securities
other than that series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in principal
amount of all Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
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(5)
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the entry by a court having jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable federal or state
law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestration
or other similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in effect for
a period of 90 consecutive days; or
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(6)
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the commencement by the Company of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it, of a
petition or answer or consent seeking reorganization or relief under any applicable
federal or state law, or the consent by it to the filing of such petition or to the
appointment of or taking
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possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become due; or
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(7)
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any other Event of Default provided with respect to Securities of that series.
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Notwithstanding the foregoing provisions of this Section 501, if the principal of, premium (if
any) or any interest on or any Additional Amounts with respect to any Security is payable in a
currency or currencies (including a composite currency) other than Dollars and such currency or
currencies are not available to the Company for making payment thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company (a “Conversion Event”),
the Company will be entitled to satisfy its obligations to Holders of the Securities by making such
payment in Dollars in an amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the Exchange Rate, as such Exchange Rate is
certified for customs purposes by the Federal Reserve Bank of New York on the date of such payment,
or, if such rate is not then available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 501, any payment made under such
circumstances in Dollars where the required payment is in a currency other than Dollars will not
constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event with respect to the Securities of any
series, the Company shall give written notice thereof to the Trustee; and the Trustee, promptly
after receipt of such notice, shall give notice thereof in the manner provided in Section 107 to
the Holders of such series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to the Securities of any series, the Company shall give notice in the
manner provided in Section 107 to the Holders of such series, setting forth the applicable Exchange
Rate and describing the calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of (i) the series affected by such default (in
the case of an Event of Default described in clause (1), (2), (3) or (7) of Section 501 or an Event
of Default described in clause (4) of Section 501 relating to a covenant applicable only to such
series) or (ii) all series of Securities (in the case of an Event of Default described in clause
(4) of Section 501 that is applicable to all series of Securities) may declare the principal amount
(or, if any such Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) and accrued interest on of all of the Securities of the series
affected by such default or all series, as the case may be, to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and upon any such
declaration such amount shall become immediately due and payable. If an Event of Default described
in clause (5) or (6) of Section 501 shall occur, the principal amount of and accrued interest on the Outstanding Securities
of all series ipso facto shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to Securities of any series
(or of all series, as the case may be) has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter provided in this Article Five, the
Holders of a majority in principal amount of the Outstanding Securities of that series (or of all
series, as the case may be), by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
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(1)
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the Company has paid or deposited with the Trustee a sum sufficient to pay
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(A)
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all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the case may
be),
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(B)
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the principal of or premium (if any) on any Securities of that
series (or of all series, as the case may be) which have become due otherwise
than by such declaration of acceleration
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and interest thereon at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities, the
Securities’ Yield to Maturity),
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(C)
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to the extent that payment of such interest is lawful, interest
upon overdue interest and any Additional Amounts at the rate or rates
prescribed therefor in such Securities (in the case of Original Issue Discount
Securities, the Securities’ Yield to Maturity), and
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(D)
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all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 607;
and
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(2)
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all Events of Default with respect to Securities of that series (or of all
series, as the case may be), other than the nonpayment of the principal of Securities
of that series (or of all series, as the case may be) which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
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(1)
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default is made in the payment of any installment of interest on, or any
Additional Amounts with respect to, any Security of any series when such interest or
Additional Amounts shall have become due and payable and such default continues in
excess of any applicable grace period, or
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(2)
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default is made in the payment of the principal of or premium (if any) on any
Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal of, premium (if any) and interest on or any
Additional Amounts with respect to such Securities and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal, premium
(if any) and on any overdue interest or Additional Amounts, at the rate or rates
prescribed therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities’ Yield to Maturity), and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and all other amounts due the Trustee under Section 607.
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If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee
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(irrespective of whether the principal (or lesser amount in the case of Original Issue Discount
Securities) of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for
the payment of overdue principal of, premium (if any), interest on or any Additional Amounts with
respect to such Securities) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
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(i)
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to file and prove a claim for the whole amount of principal (or lesser amount
in the case of Original Issue Discount Securities) (and premium, if any) and interest
and any Additional Amounts owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
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(ii)
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to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceedings;
provided
, however,
that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claim under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without possession of any of the Securities or the production thereof in
any proceeding relating thereto; any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust; after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607, any recovery of judgment shall be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal of, premium (if any) or interest on or any Additional Amounts with
respect to any Securities, upon presentation of the Securities, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of, premium (if any)
and interest on and any Additional Amounts with respect to such Securities in respect of which or
for the benefit of which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for principal of, premium (if
any), interest on and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Company.
To the fullest extent allowed under applicable law, if for the purpose of obtaining judgment
against the Company in any court it is necessary to convert the sum due in respect of the principal
of, premium (if any) or
25
interest on or any Additional Amounts with respect to the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate
of exchange used shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on
the Business Day in The City of New York next preceding that on which final judgment is given.
Neither the Company nor the Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section 506 caused by a change in exchange
rates between the time the amount of a judgment against it is calculated as above and the time the
Trustee converts the Judgment Currency into the Required Currency to make payments under this
Section 506 to Holders of Securities, but payment of such judgment shall discharge all amounts owed
by the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
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(1)
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an Event of Default with respect to Securities of such series shall have
occurred and be continuing and such Holder has previously given written notice to the
Trustee of such continuing Event of Default;
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(2)
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the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
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(3)
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such Holder or Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with such request;
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(4)
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the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
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(5)
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no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities of that series; it being understood and intended that no one
or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of, premium (if
any) and (subject to Section 307) interest on or any Additional Amounts with respect to such
Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment
on or after such respective dates, and such rights shall not be impaired or affected without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such
case, the Company, the Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their
26
former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article Five or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under an Event of Default described in clause (1),
(2), (3) or (7) of Section 501 (or clause (4) of Section 501 with respect to a covenant that is
applicable only to such series), and with respect to all Securities the Holders of a majority in
principal amount of all Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, not relating to or arising under such an Event of Default,
provided
that in each
such case
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(1)
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the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may not
lawfully be taken or would conflict with this Indenture or if the Trustee in good faith
shall, by a Responsible Officer, determine that the proceedings so directed would
involve it in personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
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(2)
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the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
Subject to Sections 508 and 902, the Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect to such series and its consequences, and the
Holders of a majority in principal amount of all Outstanding Securities may on behalf of the
Holders of all Securities waive any other past default hereunder and its consequences, except in
each case a default
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(1)
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in the payment of the principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Security, or
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(2)
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in respect of a covenant or provision hereof that under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security
affected.
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Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant. The provisions of this Section 514 shall not apply to any suit instituted by the Company,
by the Trustee, by any Holder or group of Holders holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or by any Holder for the enforcement
of the payment of the principal of, premium (if any) or interest on or any Additional Amounts with
respect to any Security on or after the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any
series,
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(1)
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the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
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(2)
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in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
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(b) In case an Event of Default has occurred and is continuing with respect to the Securities
of any series, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that
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(1)
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this clause (1) shall not be construed to limit the effect of
subsection (a) of this Section 601;
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(2)
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the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(3)
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the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any
series or of all series, determined as provided in Section 512, relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series; and
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(4)
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no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 601.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default or Event of Default with respect to the
Securities of any series, the Trustee shall give notice of such Default or Event of Default known
to the Trustee to all Holders of Securities of such series in the manner provided in Section 107,
unless such default shall have been cured or waived;
provided
, however, that, except in the case of
a Default or Event of Default in the payment of the principal of, premium (if any) or interest on
or any Additional Amounts with respect to any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) shall be entitled to receive and
may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;
29
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or Event of Default with
respect to the Securities of any series for which it is acting as Trustee unless either (1) a
Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the Trustee by the Company or
any other obligor on such Securities or by any Holder of such Securities and such notice references
the Securities and this Indenture;
(i) the Trustee shall not be liable for any action taken, suffered or omitted by it in good
faith and reasonably believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture and such notice references the Securities and this Indenture;
and
(j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including its rights to be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
30
SECTION 607. Compensation and Reimbursement.
The Company agrees
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(1)
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to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust);
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(2)
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except as otherwise expressly provided herein, to reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
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(3)
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to indemnify each of the Trustee and any predecessor Trustee and its directors,
officers, employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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As security for the performance of the obligations of the Company under this Section 607, the
Trustee shall have a lien prior to the Securities on all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of, premium (if any)
or interest on or any Additional Amounts with respect to particular Securities.
Any expenses and compensation for any services rendered by the Trustee after the occurrence of
an Event of Default specified in clause (5) or (6) of Section 501 shall constitute expenses and
compensation for services of administration under all applicable federal or state bankruptcy,
insolvency, reorganization or other similar laws.
The provisions of this Section 607 and any lien arising hereunder shall survive the
resignation or removal of the Trustee or the discharge of the Company’s obligations under this
Indenture and the termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section
608, with respect to the Securities of any series, it shall, within 90 days after ascertaining that
it has such conflicting interest, either eliminate such conflicting interest or resign with respect
to the Securities of that series in the manner and with the effect hereinafter specified in this
Article Six.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a)
of this Section 608 with respect to the Securities of any series, the Trustee shall, within 10 days
after the expiration of such 90-day period, transmit by mail to all Holders of Securities of that
series, as their names and addresses appear in the Security Register, notice of such failure.
(c) For the purposes of this Section 608, the term “conflicting interest” shall have the
meaning specified in Section 310(b) of the Trust Indenture Act and the Trustee shall comply with
Section 310(b) of the Trust Indenture Act;
provided
, that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act with respect to the Securities of any
series any indenture or indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the requirements for such
exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met. For purposes of the
preceding sentence, the optional provision permitted by the second sentence of Section 310(b)(9) of
the Trust Indenture Act shall be applicable.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50 million and subject to supervision or examination by federal or state
(or the District of Columbia) authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section 609, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 609, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article Six.
The Indenture shall always have a Trustee who satisfies the requirements of Sections
310(a)(1), 310(a)(2) and 310(a)(5) of the Trust Indenture Act.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article Six shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
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(1)
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the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
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(2)
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the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by any
such Holder of Securities, or
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(3)
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the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any
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particular series) and such successor Trustee or Trustees shall comply with the applicable
requirements of Section 611. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture, the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 611, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article Six.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion, consolidation or transfer of substantially all the
corporate trust business to such authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents that shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the District of Columbia,
having a combined capital and surplus of not less than $50 million or equivalent amount expressed
in a foreign currency and subject to supervision or examination by federal or state (or the
District of Columbia) authority or authority of such country. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 614, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner and with the effect specified in this
Section 614.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent,
provided
such corporation shall be otherwise eligible under this Section 614,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section 614, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall
mail written notice of such appointment by first-class mail, postage prepaid, to all Holders as
their names and addresses appear in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section 614.
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The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 614.
If an appointment is made pursuant to this Section 614, the Securities may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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The Bank of New York Mellon Trust Company, N.A.,
As Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Signatory
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Notwithstanding any provision of this Section 614 to the contrary, if at any time any
Authenticating Agent appointed hereunder with respect to any series of Securities shall not also be
acting as the Security Registrar hereunder with respect to any series of Securities, then, in
addition to all other duties of an Authenticating Agent hereunder, such Authenticating Agent shall
also be obligated: (i) to furnish to the Security Registrar promptly all information necessary to
enable the Security Registrar to maintain at all times an accurate and current Security Register;
and (ii) prior to authenticating any Security denominated in a foreign currency, to ascertain from
the Company the units of such foreign currency that are required to be determined by the Company
pursuant to Section 302.
ARTICLE SEVEN
HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or cause to be furnished
to the Trustee:
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(a)
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semi-annually, not more than 15 days after each Regular Record Date relating to
that series (or, if there is no Regular Record Date relating to that series, on January
1 and July 1), a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of that series as of such dates, and
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(b)
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at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and content,
such list to be dated as of a date not more than 15 days prior to the time such list is
furnished;
provided
, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the Trustee.
The Company shall otherwise comply with Section 310(a) of the Trust Indenture Act.
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SECTION 702. Preservation of Information; Communications to Holders.
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(a)
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The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders of each series contained in the most recent list
furnished to the Trustee as
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provided in Section 701 and the names and addresses of Holders of each series
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701 upon receipt of a new
list so furnished. The Trustee shall otherwise comply with Section 310(a) of the
Trust Indenture Act.
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(b)
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Holders of Securities may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this Indenture or
under the Securities. The Company, the Trustee, the Security Registrar and any other
Person shall have the protection of Section 312(c) of the Trust Indenture Act.
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SECTION 703. Reports by Trustee.
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(a)
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Within 60 days after May 15 of each year after the execution of this Indenture,
the Trustee shall transmit by mail to Holders a brief report dated as of such May 15
that complies with Section 313(a) of the Trust Indenture Act. The Trustee shall comply
with Section 313(b) of the Trust Indenture Act. The Trustee shall transmit by mail all
reports as required by Sections 313(c) and 313(d) of the Trust Indenture Act.
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(b)
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A copy of each report pursuant to subsection (a) of this Section 703 shall, at
the time of its transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on any
stock exchange.
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SECTION 704. Reports by the Company.
The Company shall file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended, and shall otherwise comply with Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or amalgamate with or merge into any other Person or sell,
lease, convey, transfer or otherwise dispose of all or substantially all of its properties and
assets to any Person (other than a direct or indirect wholly-owned subsidiary of the Company),
unless:
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(1)
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either (a) the Company shall be the continuing Person or (b) the Person formed
by such consolidation or amalgamation or into which the Company is merged, or that
acquires, by sale, lease, conveyance, transfer or other disposition, all or
substantially all of the properties and assets of the Company, shall expressly assume,
by a supplemental indenture, the due and punctual payment of the principal of (and
premium, if any) and interest on or any Additional Amounts with respect to the
Securities and the performance of the Company’s covenants and obligations under this
Indenture and the Securities;
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(2)
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immediately after giving effect to such transaction, and treating any
indebtedness that becomes indebtedness of the Company or a Subsidiary of the Company as
a result of such transaction as having been incurred by the Company or such Subsidiary
at the time of such transaction, no Default or Event of Default shall have happened and
be continuing; and
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(3)
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the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale,
lease, conveyance, transfer or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply with
Sections 801 and 802 and that all conditions precedent herein provided for relating to
such transaction have been complied with.
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SECTION 802. Successor Person Substituted for Company.
Upon any consolidation or amalgamation by the Company with or merger by the Company into any
other Person or any sale, lease, conveyance, transfer or other disposition of all or substantially
all of the properties and assets of the Company in accordance with Section 801, the successor
Person formed by such consolidation or amalgamation or into which the Company is merged or to which
such sale, lease, conveyance, transfer or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company herein, and thereafter,
except in the case of such lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(1)
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to evidence the succession of another Person to the Company and the assumption
by any such successor of the covenants of the Company herein and in the Securities; or
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(2)
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to add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) to convey, transfer, assign, mortgage or pledge
any property to or with the Trustee or otherwise secure any series of the Securities or
to surrender any right or power herein conferred upon the Company; or
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(3)
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to add any additional Events of Default with respect to all or any series of
the Securities (and, if such Event of Default is applicable to less than all series of
Securities, specifying the series to which such Event of Default is applicable); or
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(4)
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to change or eliminate any of the provisions of this Indenture,
provided
that
any such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture
which is adversely affected by such change in or elimination of such provision; or
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(5)
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to secure the Securities; or
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(6)
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to supplement any of the provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the defeasance and discharge of any series of
Securities pursuant to Section 401;
provided
, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such series or any other
series of Securities in any material respect; or
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(7)
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to establish the form or terms of Securities of any series as permitted by
Sections 201 and 301; or
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(8)
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to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
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(9)
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to cure any ambiguity, to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided
such other provisions as may be made shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
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SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental indenture (acting as one class), by Act of
said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture;
provided
, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
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(1)
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change the Stated Maturity of the principal of, or any installment of principal
of or interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon, any Additional Amounts with respect thereto or any premium payable
upon the redemption thereof, or change any obligation of the Company to pay Additional
Amounts (except as contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency or
currencies (including composite currencies) in which, any Security or any premium or
any interest thereon or Additional Amounts with respect thereto is payable, or impair
the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption
Date),
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(2)
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reduce the percentage in principal amount of Outstanding Securities, the
consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
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(3)
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modify any of the provisions of this Section 902, Section 513 or Section 1006,
except to increase any such percentage or to provide with respect to any particular
series the right to condition the effectiveness of any supplemental indenture as to
that series on the consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which provision may be made
pursuant to Section 301 without the consent of any Holder) or to provide that certain
other provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby,
provided
, however, that this
clause (3) shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this Section 902
and Section 1006, or the deletion of this proviso, in accordance with the requirements
of Section 611(b) and Section 901(7).
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A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section 902 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon an Opinion of Counsel and Officers’ Certificate stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties, immunities or liabilities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Nine may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of, premium (if any) and interest on and any
Additional Amounts with respect to the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, City of New York, an office or agency
(which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities may be
presented or surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in respect of Securities
and this Indenture may be served. Unless otherwise designated by the Company by written notice to
the Trustee, such office or agency shall be the office of the agent of the Trustee in the City of
New York which, on the date hereof, is located at The Bank of New York Mellon, 101 Barclay, 7 East,
New York, NY 10286, Attention Corporate Trust. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust
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Office of the Trustee and the Company hereby appoints the Trustee its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided
, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company, any Subsidiary or any of their respective Affiliates shall at any time act as
Paying Agent with respect to any series of Securities, such Paying Agent will, on or before each
due date of the principal of, premium (if any) or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium (if any) or interest or any
Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, the
Company will, on or before each due date of the principal of, premium (if any) or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal of,
premium (if any) or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section 1003, that such Paying Agent will:
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(1)
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hold all sums held by it for the payment of the principal of, premium (if any)
or interest on or any Additional Amounts with respect to Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
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(2)
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give the Trustee notice of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment of principal of,
premium (if any) or interest on or any Additional Amounts with respect to the
Securities of that series; and
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(3)
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at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
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The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Security of any series and remaining unclaimed for three years after
such principal of, premium (if any) or interest on or any Additional Amounts with respect to any
Securities have become due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all
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liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease;
provided
, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in The Borough of Manhattan, The
City of New York and in such other Authorized Newspapers as the Trustee shall deem appropriate,
notice that such money remains unclaimed and that, after a date specified herein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of such money then
remaining will, unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
SECTION 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof so long as any Security is outstanding hereunder, an
Officers’ Certificate, complying with Section 314(a)(4) of the Trust Indenture Act and stating that
a review of the activities of the Company during such year and of performance under this Indenture
has been made under the supervision of the signers thereof and whether or not to the best of their
knowledge, based upon such review, the Company is in default in the performance, observance or
fulfillment of any of its covenants and other obligations under this Indenture, and if the Company
shall be in default, specifying each such default known to them and the nature and status thereof.
One of the director(s) or officers signing the Officers’ Certificate delivered pursuant to this
Section 1005 shall be the principal executive, financial or accounting officer of the Company.
For purposes of this Section 1005, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant or condition set
forth in Sections 1001 through 1005, inclusive, or any covenant added for the benefit of any series
of Securities as contemplated by Section 301 (unless otherwise specified pursuant to Section 301)
if before or after the time for such compliance the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such omission (acting as one class) shall, by
Act of such Holders, either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 1007. Additional Amounts.
If the Securities of a series expressly provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of such series Additional Amounts as expressly
provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the
principal of, or premium (if any) or interest on any Security of any series or the net proceeds
received from the sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for in this Section 1007 to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section 1007 and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional Amounts, at least 10 days
prior to the first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear
41
interest prior to Maturity, the first day on which a payment of principal and any premium is made),
and at least 10 days prior to each date of payment of principal and any premium or interest if
there has been any change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish the Trustee and the Company’s principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest
on the Securities of that series shall be made to Holders of Securities of that series who are
United States Aliens without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such withholding shall be
required, then such Officers’ Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities and the Company will pay to such Paying
Agent the Additional Amounts required by this Section 1007. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished
pursuant to this Section 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
Unless otherwise provided with respect to the Securities of a series as contemplated by
Section 301, the election of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least five (5) business days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and that may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for Securities of that series
or any integral multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of that series or of
the principal amount of global Securities of such series.
The Trustee shall promptly notify the Company and the Security Registrar in writing of the
Securities selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
42
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 107 to each Holder of
Securities to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
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(1)
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the Redemption Date,
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(2)
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the Redemption Price,
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(3)
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if less than all the Outstanding Securities of any series are to be redeemed,
the identification (and, in the case of partial redemption, the principal amounts) of
the particular Securities to be redeemed,
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(4)
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that on the Redemption Date the Redemption Price will become due and payable
upon each such Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
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(5)
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the place or places where such Securities are to be surrendered for payment of
the Redemption Price,
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(6)
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that the redemption is for a sinking fund, if such is the case, and
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(7)
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the “CUSIP” number, if applicable.
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A notice of redemption as contemplated by Section 107 need not identify particular Securities
to be redeemed. Notice of redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, and any Additional Amounts with respect to, all the Securities which are to be
redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest (and any Additional Amounts) to the Redemption
Date;
provided
, however, that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal of and premium (if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security or, in the case of Original Issue
Discount Securities, the Securities’ Yield to Maturity.
43
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and Stated Maturity, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
Unless otherwise specified as contemplated by Section 301, the Company and any Affiliate of
the Company may at any time purchase or otherwise acquire Securities in the open market or by
private agreement. Such acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by such Securities. Any Securities purchased or acquired
by the Company may be delivered to the Trustee and, upon such delivery, the indebtedness
represented thereby shall be deemed to be satisfied. Section 309 shall apply to all Securities so
delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article Twelve shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as contemplated by Section 301
for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment”. Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
provided
that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to
each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivery
of or by crediting Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the
44
manner provided in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called at any time and from
time to time pursuant to this Article Thirteen to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
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(a)
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The Trustee may at any time call a meeting of Holders of Securities of any
series for any purpose specified in Section 1301, to be held at such time and at such
place in Houston, Texas, in The Borough of Manhattan, The City of New York, or in any
other location as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 107, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
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(b)
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In case at any time the Company, pursuant to a Board Resolution, or the Holders
of at least 10% in aggregate principal amount of the Outstanding Securities of any
series, shall have requested the Trustee for any such series to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the notice of
such meeting within 30 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in Houston, Texas, in The Borough of Manhattan,
The City of New York, or in London, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this Section 1302.
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SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of the Outstanding
Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such
series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a), except that such notice need be
given only once not less than five days prior to the date on which
45
the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall
state expressly that Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series;
provided
, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization, direction, notice, consent
or waiver which this Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage that is less than a majority in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified
percentage in aggregate principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed or decision taken at
any meeting of Holders of Securities of any series duly held in accordance with this Section 1304
shall be binding on all the Holders of Securities of such series, whether or not present or
represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(a)
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The holding of Securities shall be proved in the manner specified in Section
105 and the appointment of any proxy shall be proved in the manner specified in Section
105. Such regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified in Section
105 or other proof.
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(b)
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The Trustee shall, by an instrument in writing, appoint a temporary chairman of
the meeting, unless the meeting shall have been called by the Company or by Holders of
Securities as provided in Section 1302(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the meeting.
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(c)
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At any meeting each Holder of a Security of such series and each proxy shall be
entitled to one vote for each $1,000 principal amount of the Outstanding Securities of
such series held or represented by him;
provided
, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such series or as a
proxy.
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(d)
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Any meeting of Holders of Securities of any series duly called pursuant to
Section 1302 at which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the Outstanding Securities
of such series represented at the meeting; and the meeting may be held as so adjourned
without further notice.
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SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to such record the original
reports of the inspectors of votes on any vote by
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ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that such notice was given as provided in
Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
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NOBLE HOLDING INTERNATIONAL LIMITED
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By:
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Alan R. Hay
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Director
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
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By:
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Julie Hoffman-Ramos
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Assistant Treasurer
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48
Exhibit 4.2
NOBLE HOLDING INTERNATIONAL LIMITED
ISSUER
NOBLE CORPORATION
GUARANTOR
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
RELATING TO
7.375% SENIOR NOTES DUE 2014
DATED AS OF NOVEMBER 21, 2008
FIRST SUPPLEMENTAL INDENTURE, dated as of November 21, 2008 and relating to the Notes referred
to below (this “
First Supplemental Indenture
”), by and among NOBLE HOLDING INTERNATIONAL
LIMITED, a Cayman Islands exempted company limited by shares (herein called the “
Company
”),
NOBLE CORPORATION, a Cayman Islands exempted company limited by shares (herein called the
“
Guarantor
”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association duly organized and existing under the laws of the United States of America, as Trustee
(herein called the “
Trustee
”). Capitalized terms not otherwise defined in this First
Supplemental Indenture have the meanings assigned to them in the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated
as of November 21, 2008 (as amended, supplemented or otherwise modified from time to time, the
“
Indenture
”), to provide for the issuance from time to time of its unsecured senior debt
securities (the “
Securities
”), the form and terms of which are to be established pursuant
to Articles Two and Three of the Indenture; and
WHEREAS, Article Nine of the Indenture provides, among other things, that the Company and the
Trustee may enter into indentures supplemental to the Indenture for, among other things, the
purpose of establishing the form and terms of the Securities of any series as permitted in Articles
Two and Three of the Indenture and otherwise amending the Indenture in a manner not prejudicial to
the interests of the Holders of the Securities of any series; and
WHEREAS, the Company
desires to create a series of Securities under the Indenture to be issued in an initial
aggregate principal amount of $250,000,000 designated as the 7.375% Senior Notes due 2014 (the “
Notes
”),
in furtherance of which the Board of Directors has adopted a Board Resolution authorizing the
Company to enter into this First Supplemental Indenture without the consent of the Holders of the
Securities as provided for in Section 901 of the Indenture; and
WHEREAS, the Guarantor owns, indirectly, all of the outstanding shares of the Company and has
agreed to (i) fully and unconditionally guarantee the due and punctual payment of the principal of,
premium, if any, interest on and all other amounts due under the Indenture and the Notes, which
guarantee is provided in this First Supplemental Indenture, and (ii) be bound by certain other covenants specified herein; and
WHEREAS, all acts necessary to make the Notes, when executed by the Company and authenticated
and delivered by the Trustee as provided in the Indenture, the valid and binding obligations of the
Company and to make this First Supplemental Indenture a valid and binding agreement in accordance
with Article Nine of the Indenture have been duly performed and executed;
NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained, the
Company, the Guarantor and the Trustee mutually covenant and agree for the equal and proportionate
benefit of the Holders from time to time of the Notes as follows:
1
Section 1. Issuance, Terms and Form of the Notes.
1.1
Issuance of the Notes
. A series of Securities is hereby created which shall be
designated as the 7.375% Senior Notes due 2014. The aggregate principal amount of the Notes created
hereby that may be authenticated and delivered under this First Supplemental Indenture shall
initially be $250,000,000, subject to the Company’s right to issue additional Notes from time to time in accordance with the terms of the Indenture.
1.2
Terms of the Notes
. The Notes shall be executed, authenticated and delivered in
accordance with the provisions of, and shall in all respects be subject to, the terms, conditions
and covenants of the Indenture and this First Supplemental Indenture.
1.3
Form of the Notes
. The Notes shall be executed, authenticated and delivered
substantially in the form attached hereto as
Exhibit A
, the terms of which are incorporated
in this First Supplemental Indenture for all purposes.
1.4
Depositary
. The Notes shall be
issued in global form, except as provided in the Indenture. The Company initially
appoints The Depository Trust Company to acts as Depositary with respect to the Notes.
Section 2. Amendments to the Indenture Relating to the Notes.
2.1
Amendments to Article One of the Indenture (Definitions)
. Article One of the
Indenture is hereby amended in respect of, and applicable to, the Notes and only in respect of, and
applicable to, the Notes as follows:
(a) by adding thereto the following new definitions in their appropriate alphabetical order:
“
Attributable Indebtedness
,” when used with respect to any Sale/Leaseback Transaction,
means, as at the time of determination, the present value (discounted at the rate set forth or
implicit in the terms of the lease included in such transaction) of the total obligations of the
lessee for rental payments (other than amounts required to be paid on account of taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items
that do not constitute payments for property rights) during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease that is terminable by the lessee upon the payment of a penalty,
such net amount shall be the lesser of the net amount determined assuming termination upon the
first day such lease may be terminated (in which case the net amount shall also include the amount
of the penalty, but no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated) or the net amount determined assuming no such
termination.
“
Capitalized Lease Obligations
” of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under generally accepted
accounting principles in the United States, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with generally accepted accounting principles
in the United States.
“
Consolidated Net Tangible Assets
” means the total amount of assets (less applicable
2
reserves and other properly deductible items) after deducting (1) all current liabilities
(excluding the amount of those that are by their terms extendable or renewable at the option of the
obligor to a date more than 12 months after the date as of which the amount is being determined and
current maturities of long-term debt) and (2) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangible assets, all as set forth on the
most recent quarterly balance sheet of the Guarantor and its consolidated Subsidiaries and
determined in accordance with generally accepted accounting principles in the United States.
“
Funded Indebtedness
” means all Indebtedness (including Indebtedness incurred under
any revolving credit, letter of credit or working capital facility) that by its terms matures on,
or that is renewable at the option of any obligor thereon to, a date more than one year after the
date on which such Indebtedness is originally incurred.
“
Guarantee
” has the meaning set forth in Section 3(a).
“
Guarantor
” has the meaning set forth in the preamble.
“
Guarantor Board of Directors
” means either the board of directors of the Guarantor or
any duly authorized committee of that board.
“
Indebtedness
” of any Person means, without duplication, (i) all indebtedness of such
Person for borrowed money (whether or not the recourse of the lender is to the whole of the assets
of such Person or only to a portion thereof), (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement obligations with
respect thereto), other than standby letters of credit, performance bonds and other obligations
issued by or for the account of such Person in the ordinary course of business, to the extent not
drawn or, to the extent drawn, if such drawing is reimbursed not later than the third Business Day
following demand for reimbursement, (iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, except trade payables and accrued expenses incurred
in the ordinary course of business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness of others secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person (provided that if the obligations so secured have not been
assumed in full by such Person or are not otherwise such Person’s legal liability in full, then
such obligations shall be deemed to be in an amount equal to the greater of (a) the lesser of (1)
the full amount of such obligations and (2) the fair market value of such assets, as determined in
good faith by the board of directors of such Person, which determination shall be evidenced by a
resolution of such board of directors, and (b) the amount of obligations as have been assumed by
such Person or that are otherwise such Person’s legal liability), and (vii) all Indebtedness of
others (other than endorsements in the ordinary course of business) guaranteed by such Person to
the extent of such guarantee.
“
Joint Venture
” means any partnership, corporation or other entity in which up to and
including 50% of the partnership interests, outstanding voting stock or other equity interests is
owned, directly or indirectly, by the Guarantor and/or one or more of its Subsidiaries.
3
“
Lien
” means any mortgage, pledge, lien, encumbrance, charge or security interest. For
purposes of the Indenture, the Guarantor or any Subsidiary of the Guarantor shall be deemed to own
subject to a Lien any asset that it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Capitalized Lease Obligation or other title retention
agreement relating to such asset.
“
Make-Whole Premium
” with respect to any Note (or portion of a Note) to be redeemed
shall be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption Date, of:
(A) each interest payment that, but for the redemption, would have been payable on the
Note (or its portion) being redeemed on each Interest Payment Date occurring after the
Redemption Date (excluding any accrued interest for the period before the Redemption Date);
and
(B) the principal amount that, but for the redemption, would have been payable at the
final maturity of the Note (or its portion) being redeemed;
over
(ii) the principal amount of the Note (or its portion) being redeemed.
The present values of interest and principal payments referred to in clause (i) above will be
determined in accordance with generally accepted principles of financial analysis. Those present
values will be calculated by discounting the amount of each payment of interest or principal from
the date that each payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield
plus
50 basis points.
The Make-Whole Premium will be calculated by an independent investment banking institution of
national standing appointed by the Company, provided that if the Company fails to make such
appointment at least 45 Business Days prior to the Redemption Date, or if the institution so
appointed is unwilling or unable to make the calculation, such calculation will be made by Goldman,
Sachs & Co. or, if that firm is unwilling or unable to make the calculation, by an independent
investment banking institution of national standing appointed by the Trustee (in any such case, the
“
Independent Investment Banker
”).
“
Non-Recourse Indebtedness
” means any Indebtedness of the Guarantor or any Subsidiary
of the Guarantor in respect of which (a) the recourse of the holder of such Indebtedness, whether
direct or indirect and whether contingent or otherwise, is effectively limited to (i) Liens on
specified assets and (ii) in respect of Indebtedness of a Subsidiary of the Guarantor, Liens on
assets of the Subsidiary acquired after the date of original issuance of the Notes, and with
respect to such Indebtedness of the Guarantor or a Subsidiary of the Guarantor, neither the
Guarantor nor any Subsidiary of the Guarantor (other than the issuer of such Indebtedness) provides
any credit support or is otherwise liable or obligated and (b) the occurrence of any event, or the
existence of any condition under any agreement or instrument
4
relating to such Indebtedness, shall not at any time have the effect of accelerating, or permitting
the acceleration of, the maturity of any other Indebtedness of the Guarantor or any of its
Subsidiaries or otherwise permitting any such other Indebtedness to be declared due and payable, or
to be required to be prepaid, purchased or redeemed, prior to the stated maturity thereof.
“
Pari Passu Indebtedness
” means any Indebtedness of the Guarantor, whether outstanding
on the issue date of the Notes or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which
the same is outstanding expressly provides that such Indebtedness shall be subordinated in right of
payment to the Guarantee.
“
Permitted Liens
” means (i) Liens existing on the date of original issuance of
the Notes; (ii) Liens on property or assets of, or any shares of stock of, or other equity
interests in, or indebtedness of, any Person existing at the time such Person becomes a Subsidiary
of the Guarantor or at the time such Person is merged into or consolidated with the Guarantor or
any of its Subsidiaries or at the time of a sale, lease or other disposition of all or
substantially all of the properties and assets of a Person to the Guarantor or a Subsidiary of the
Guarantor; (iii) Liens in favor of the Guarantor or any of its Subsidiaries; (iv) Liens in favor of
governmental bodies to secure progress or advance payments; (v) Liens securing industrial revenue
or pollution control bonds or similar indebtedness; (vi) Liens on property securing (a) all or any
portion of the cost of acquiring, constructing, altering, improving or repairing any property or
assets, real or personal, or improvements used or to be used in connection with such property or
(b) Indebtedness incurred by the Guarantor or any Subsidiary of the Guarantor prior to or within
one year after the later of the acquisition, the completion of construction, alteration,
improvement or repair or the commencement of commercial operation thereof, which Indebtedness is
incurred for the purpose of financing all or any part of the purchase price thereof or construction
or improvements thereon; (vii) statutory liens or landlords’, carriers’, warehouseman’s,
mechanics’, suppliers’, materialmen’s, repairmen’s or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent or being contested in good faith
by appropriate proceedings; (viii) Liens on current assets of the Guarantor or any Subsidiary of
the Guarantor securing Indebtedness of the Guarantor or such Subsidiary, respectively; (ix) Liens
on the stock, partnership or other equity interest of the Guarantor or any Subsidiary of the
Guarantor in any Joint Venture or any Subsidiary of the Guarantor that owns an equity interest in
such Joint Venture to secure Indebtedness, provided the amount of such Indebtedness is contributed
and/or advanced solely to such Joint Venture; (x) Liens under workers compensation or similar
legislation; (xi) Liens in connection with legal proceedings or securing tax assessments, which in
each case are being contested in good faith; (xii) good faith deposits in connection with bids,
tenders, contracts or Liens; (xiii) deposits made in connection with maintaining self-insurance, to
obtain the benefits of laws, regulations or arrangements relating to unemployment insurance, old
age pensions, social security or similar matters or to secure surety, appeal or customs bonds; and
(xiv) any extensions, substitutions, replacements or renewals in whole or in part of a Lien
enumerated in clauses (i) through (xiii) above.
“
Principal Property
” means any jackup, semisubmersible, drillship, submersible or
other mobile offshore drilling unit, or integral portion thereof, owned or leased by the Guarantor
or any Subsidiary of the Guarantor and used for drilling offshore oil and gas wells, which, in the
5
opinion of the Guarantor Board of Directors, is of material importance to the business of the
Guarantor and its Subsidiaries taken as a whole, but no such jackup, semisubmersible, drillship,
submersible or other mobile offshore drilling unit, or portion thereof, shall be deemed of material
importance if its net book value (after deducting accumulated depreciation) is less than 2.0% of
Consolidated Net Tangible Assets of the Guarantor and its consolidated Subsidiaries.
“
Sale/Leaseback Transaction
” means any arrangement with any Person pursuant to which
the Guarantor or any Subsidiary of the Guarantor leases any Principal Property that has been or is
to be sold or transferred by the Guarantor or the Subsidiary to such Person, other than (i)
temporary leases for a term, including renewals at the option of the lessee, of not more than five
years, (ii) leases between the Guarantor and a Subsidiary of the Guarantor or between Subsidiaries
of the Guarantor, or (iii) leases of Principal Property executed by the time of, or within 12
months after the later of, the acquisition, the completion of construction, alteration, improvement
or repair or the commencement of commercial operation of the Principal Property.
“
Tax Additional Amounts
” has the meaning set forth in Section 2.2.
“
Taxing Jurisdiction
” has the meaning set forth in Section 2.2.
“
Treasury Yield
” means a rate of interest per annum equal to the weekly average yield
to maturity of United States Treasury Notes that have a constant maturity that corresponds to the
remaining terms to maturity of the Notes, calculated to the nearest 1/12th of a year (the
“
Remaining Term
”). The Treasury Yield will be determined as of the third Business Day
immediately before the applicable Redemption Date.
The weekly average yields of United States Treasury Notes will be determined by referring to
the most recent statistical release published by the Federal Reserve Bank of New York and
designated “H.15(519) Selected Interest Rates” or any successor release (the “
H.15 Statistical
Release
”). If the H.15 Statistical Release contains a weekly average yield for United States
Treasury Notes having a constant maturity that is the same as the Remaining Term, then the Treasury
Yield will be equal to that weekly average yield. In all other cases, the Treasury Yield will be
calculated by interpolation, on a straight-line basis, between the weekly average yields on the
United States Treasury Notes that have a constant maturity closest to and greater than the
Remaining Term and the United States Treasury Notes that have a constant maturity closest to and
less than the Remaining Term (in each case as set forth in the H.15 Statistical Release). Any
weekly average yields as calculated by interpolation will be rounded to the nearest 1/100th of 1%
with any figure of 1/200% or above being rounded upward. If weekly average yields for United States
Treasury Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury
Yield will be calculated by interpolation of comparable rates selected by the Independent
Investment Banker.
“
Withholding Tax
” has the meaning set forth in Section 2.2.
(b) for purposes of this First Supplemental Indenture only, by adding the following definitions:
“Officers’ Certificate”, when used with respect to the Guarantor, means a certificate signed
by (i) the Chairman of the Board, the Chief Executive Officer, the President or a Vice President,
and (ii) the Treasurer, the Controller, the Secretary or an Assistant Treasurer, Assistant
Controller or Assistant Secretary of the Guarantor, and delivered to the Trustee, which
certificate shall be in compliance with Section 103 hereof.
6
“
Redemption Price
” shall be the price equal to 100% of the principal amount of the
Notes being redeemed
plus
accrued interest to the Redemption Date (subject to the right of
holders of record on the relevant record date to receive interest due on an interest payment date
that is on or prior to the Redemption Date),
plus
a Make-Whole Premium, if any is required
to be paid. The Redemption Price will never be less than 100% of the principal amount of the Notes
being redeemed
plus
accrued interest to the Redemption Date.
“
Subsidiary
” means, with respect to the Guarantor at any date, any corporation,
limited liability company, partnership, association or other entity the accounts of which would be
consolidated with those of the Guarantor in the Guarantor’s consolidated financial statements if
such financial statements were prepared in accordance with generally accepted accounting principles
in the United States as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (i) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are, as of such date,
owned, controlled or held, or (ii) that is, as of such date, otherwise controlled, by the Guarantor
or one or more Subsidiaries of the Guarantor.
2.2
Amendments to Article Three of the Indenture (Tax Additional Amounts).
Article
Three is hereby amended in respect of, and applicable to, the Notes and only in respect of, and
applicable to, the Notes by adding the following section as Section 312:
SECTION 312. Tax Additional Amounts.
The Company shall pay any amounts due with respect to the payments on the Notes
without deduction or withholding for any and all present and future withholding
taxes, levies, imposts and charges (each, a “
Withholding Tax
”) imposed by or
for the account of the Cayman Islands or any other jurisdiction in which the Company
is resident for tax purposes or any political subdivision or taxing authority of
such jurisdiction (the “
Taxing Jurisdiction
”), unless such withholding or
deduction is required by law. If such deduction or withholding is at any time
required, the Company will (subject to compliance by such Holder with any relevant
administrative requirements) pay each Holder additional amounts (“
Tax Additional
Amounts
”) as will result in such Holder’s receipt of such amounts as it would
have received had no such withholding or deduction been required.
If the Taxing Jurisdiction requires the Company to deduct or withhold any
Withholding Tax, the Company will (subject to compliance by a Holder with any
relevant administrative requirements) pay such Tax Additional Amounts in respect of
principal amount, Redemption Price and interest (if any) in accordance with the
terms of the Notes and the Indenture;
provided
, however, that the foregoing shall
not apply to:
(a) any Withholding Tax that would not be payable or due but for the fact that
(1) the Holder of a Note (or a fiduciary, settlor, beneficiary of, member
7
or shareholder of, such Holder, if such Holder is an estate, trust, partnership
or corporation) is a domiciliary, national or resident of, or engaging in business
or maintaining a permanent establishment or being physically present in, the Taxing
Jurisdiction or otherwise having some present or former connection with the Taxing
Jurisdiction other than the holding or ownership of the Note or the collection of
principal amount, Redemption Price and interest (if any), in accordance with the
terms of the Note and the Indenture or the enforcement of the Note or (2) where
presentation is required, the Note was presented more than 30 days after the date
such payment became due or was provided for, whichever is later;
(b) any Withholding Tax attributable to any estate, inheritance, gift, sales,
transfer, excise, personal property or similar tax, levy, impost or charge;
(c) any Withholding Tax attributable to any tax, levy, impost or charge that is
payable otherwise than by withholding from payment of principal amount, Redemption
Price and interest (if any);
(d) any Withholding Tax that would not have been imposed but for the failure to
comply with certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connections with the
relevant tax authority of the Holder or beneficial owner of the Senior Note, if this
compliance is required by statute or by regulation as a precondition to relief or
exemption from such Withholding Tax;
(e) to the extent a Holder of a Note is entitled to a refund or credit in the
Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
or
(f) any combination of the instances described in (a) through (e).
With respect to clause (e), above, in the absence of evidence satisfactory to
the Company, the Company may conclusively presume that a Holder of a Note is
entitled to a refund or credit of all amounts required to be withheld. The Company
shall not be required to pay any Tax Additional Amounts to any Holder of a Note who
is a fiduciary or partnership or other than the sole beneficial owner of the Note to
the extent that a beneficiary or settlor with respect to such fiduciary, or a member
of such partnership or a beneficial owner thereof, would not have been entitled to
the payment of such Tax Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the Holder of the Note.
Tax Additional Amounts
shall be treated as Additional Amounts for purposes of the Indenture.
All references in the Indenture or the Notes to “interest” shall
include (without duplication) any Tax Additional Amounts due with respect thereto.
2.3
Amendments to Article Seven of the Indenture (Reports by the Company)
. Article
Seven of the Indenture is hereby amended in respect of, and applicable to, the Notes and only in
respect of, and applicable to, the Notes by amending and restating in its entirety Section 704 as
follows:
8
SECTION 704. Reports by the Company.
The Company shall file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, and
shall otherwise comply with Section 314(a) of the Trust Indenture Act.
Notwithstanding the prior sentence, any obligation of the Company to file reports
with the Trustee pursuant to the prior sentence shall be deemed to be satisfied for
so long as Guarantor (or any other person that is a successor to Guarantor’s
reporting obligations to the Commission) shall file with the Trustee within the time
period provided in the prior sentence copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) that Guarantor (or any other person that is a successor to Guarantor’s
reporting obligations to the Commission) may be required to file with the Commission
pursuant to Section 12 or Section 15(d) of the Securities Exchange Act of 1934, as
amended, and such annual reports, information, documents and other reports contain
such information relating to the Company as is required by the rules and regulations
of the Commission.
2.4
Amendments to Article Eight of the Indenture (Consolidation, Amalgamation, Conveyance,
Transfer or Lease)
. Article Eight of the Indenture is hereby amended in respect of, and
applicable to, the Notes and only in respect of, and applicable to, the Notes by adding thereto the
following new Sections 803 and 804:
SECTION 803. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate or amalgamate with or merge into any other Person or sell,
lease, convey, transfer or otherwise dispose of all or substantially all of its properties and
assets to any Person (other than a direct or indirect Wholly-Owned Subsidiary of the Guarantor),
unless:
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(1)
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either (a) the Guarantor shall be the continuing Person or (b) the Person formed by such
consolidation or amalgamation or into which the Guarantor is merged, or that acquires, by
sale, lease, conveyance, transfer or other disposition, all or substantially all of the
properties and assets of the Guarantor, shall expressly assume, by a supplemental indenture,
the Guarantee, and the performance of the Guarantor’s covenants and obligations under this
Indenture and the Guarantee;
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(2)
|
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immediately after giving effect to such transaction, and treating any indebtedness that
becomes indebtedness of the Guarantor or a Subsidiary of the Guarantor as a result of such
transaction as having been incurred by the Guarantor or such Subsidiary at the time of such
transaction, no Default or Event of Default shall have happened and be continuing; and
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9
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(3)
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the Guarantor has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, amalgamation, merger, sale, lease, conveyance,
transfer or other disposition and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture complies with Sections 803 and 804 and that all
conditions precedent herein provided for relating to such transaction have been complied with.
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SECTION 804. Successor Person Substituted for Guarantor.
Upon any consolidation or amalgamation the Guarantor with or merger by the Guarantor into any
other Person or any sale, lease, conveyance, transfer or other disposition of all or substantially
all of the properties and assets of the Guarantor in accordance with Section 803, the successor
Person formed by such consolidation or amalgamation or into which the Guarantor is merged or to
which such sale, lease, conveyance, transfer or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor under this Indenture with
the same effect as if such successor Person had been named as the Guarantor herein and thereafter,
except in the case of such lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Guarantee.
2.5
Amendments to Article Ten of the Indenture (Covenants)
. Article Ten of the
Indenture is hereby amended in respect of, and applicable to, the Notes and only in respect of, and
applicable to, the Notes by (a) amending and restating in their
entirety Sections 1004 through 1006
as set forth below, and (b) adding thereto the following new Sections 1008 and 1009:
SECTION
1004. Existence.
Subject to Article Eight, each of the Company and the Guarantor will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate existence.
SECTION
1005. Statement by Officers as to Default.
Each of the Company and the Guarantor will deliver to the Trustee, within 120 days after the
end of each fiscal year ending after the date hereof so long as any Security is outstanding
hereunder, an Officers’ Certificate, complying with Section 314(a)(4) of the Trust Indenture Act
and stating that a review of the activities of the Company or the Guarantor, as applicable, during
such year and of performance under this Indenture has been made under the supervision of the
signers thereof and whether or not to the best of their knowledge, based upon such review, the
Company or the Guarantor, as applicable, is in default in the performance, observance or
fulfillment of any of its covenants and other obligations under this Indenture, and if the Company
or Guarantor shall be in default, specifying each such default known to them and the nature and
status thereof. One of the officers signing the Officers’ Certificate on behalf of the Guarantor
delivered pursuant to this Section 1005 shall be the principal executive, financial or accounting
officer of the Guarantor.
For
purposes of this Section 1005, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
10
SECTION
1006. Waiver of Certain Covenants.
The Company and the Guarantor may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1001 through 1005 and 1007
through 1009, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by Section 301 (unless
otherwise specified pursuant to Section 301) if before or after the time for such compliance the
Holders of a majority in principal amount of the Outstanding Securities of all series affected by
such omission (acting as one class) shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company or the Guarantor, as
applicable, and the duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
SECTION 1008. Limitations on Liens.
The Guarantor will not, and will not permit any of its Subsidiaries to, issue, assume or
guarantee any Indebtedness for borrowed money secured by any Lien upon any Principal Property or
any shares of stock or indebtedness of any Subsidiary of the Guarantor that owns or leases a
Principal Property (whether such Principal Property, shares of stock or indebtedness are now owned
or hereafter acquired) without making effective provision whereby the Notes (together with, if the
Guarantor shall so determine, any other Indebtedness or other obligation) shall be secured equally
and ratably with (or, at the option of the Guarantor, prior to) the Indebtedness so secured for so
long as such Indebtedness is so secured. The foregoing restrictions do not, however, apply to
Indebtedness secured by Permitted Liens.
Notwithstanding the foregoing, the Guarantor and its Subsidiaries may, without securing the
Notes, issue, assume or guarantee secured Indebtedness that would otherwise be subject to the
foregoing restrictions in an aggregate principal amount that, together with all other such
Indebtedness of the Guarantor and its Subsidiaries that would otherwise be subject to the foregoing
restrictions (including Indebtedness permitted to be secured under clause (i) under the definition
of Permitted Liens but excluding Indebtedness permitted to be secured under clauses (ii) through
(xiv) thereunder) and the aggregate amount of Attributable Indebtedness deemed outstanding with
respect to Sale/Leaseback Transactions (other than those in connection with which the Guarantor has
voluntarily retired any of the Notes, any Pari Passu Indebtedness or any Funded Indebtedness
pursuant to clause (c) of Section 1009 hereof), does not at any one time exceed 15% of Consolidated
Net Tangible Assets.
SECTION 1009. Limitation on Sale/Leaseback Transactions.
The Guarantor will not, and will not permit any of its Subsidiaries to, enter into any
Sale/Leaseback Transaction with any Person (other than the Guarantor or a Subsidiary of the
Guarantor) unless: (a) the Guarantor or such Subsidiary would be entitled to incur Indebtedness in
a principal amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback
Transaction secured by a Lien on the property subject to such Sale/Leaseback Transaction pursuant
to Section 1008 hereof without equally and ratably securing the Notes pursuant to such
11
covenant;
(b) after the date of first issuance of the Notes and within a
period commencing nine months prior to the consummation of such Sale/Leaseback Transaction and
ending nine months after the consummation thereof, the Guarantor or such Subsidiary shall have
expended for property used or to be used in the ordinary course of business of the Guarantor and
its Subsidiaries an amount equal to all or a portion of the net proceeds of such Sale/Leaseback
Transaction and the Guarantor shall have elected to designate such amount as a credit against such
Sale/Leaseback Transaction (with any such amount not being so designated to be applied as set forth
in clause (c) below or as otherwise permitted); or (c) the Company or the Guarantor, during the
nine-month period after the effective date of such Sale/Leaseback Transaction, shall have applied
to either (i) the voluntary defeasance or retirement of any Notes, any Pari Passu Indebtedness or
any Funded Indebtedness or (ii) the acquisition of one or more Principal Properties at fair value,
an amount equal to the greater of the net proceeds of the sale or transfer of the property leased
in such Sale/Leaseback Transaction and the fair value, as determined by the Guarantor Board of
Directors, of such property as of the time of entering into such Sale/Leaseback Transaction (in
either case adjusted to reflect the remaining term of the lease and any amount expended by the
Guarantor as set forth in clause (b) above), less an amount equal to the sum of the principal
amount of Notes, Pari Passu Indebtedness and Funded Indebtedness voluntarily defeased or retired by
the Company or the Guarantor
plus
any amount expended to acquire any Principal Properties
at fair value, within such nine-month period and not designated as a credit against any other
Sale/Leaseback Transaction entered into by the Guarantor or any Subsidiary of the Guarantor during
such period.
2.6
Amendments to Article Five of the Indenture (Events of Default)
. Article Five of
the Indenture is hereby amended in respect of, and applicable to, the Notes and only in respect of,
and applicable to, the Notes by
(a) amending and restating in their entirety clauses (4), (5) and
(6) as set forth below.
(4) default in the performance or breach of any covenant of the Company or of the Guarantor in
this Indenture (other than a covenant a default in whose performance or whose breach is elsewhere
in this Section 501 specifically dealt with or that has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other than the Notes), and continuance
of such default or breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company or the Guarantor, as the case may be, by the Trustee or to the
Company or the Guarantor, as the case may be, and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Notes a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or the Guarantor a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company or the Guarantor under any applicable federal or state law, or appointing a custodian,
12
receiver, liquidator, assignee, trustee, sequestration or other similar official of the Company or
the Guarantor or of any substantial part of their respective property, or ordering the winding up or liquidation
of their respective affairs, and the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company or the Guarantor of a voluntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or the Guarantor to the
entry of a decree or order for relief in respect of the Company or the Guarantor in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against
the Company or the Guarantor, or the filing by the Company or the Guarantor, of a petition or answer or consent seeking reorganization or relief under
any applicable federal or state law, or the consent by the Company or the Guarantor to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or the Guarantor or of any substantial part of its
property, or the making by the Company or the Guarantor of an assignment for the benefit of creditors, or the admission by the Company or the Guarantor
in writing of its inability to pay its debts generally as they become
due; or
and (b) adding immediately after clause (7) the following new clauses (8) and (9),
which shall constitute additional Events of Default with
respect to the Notes as contemplated by clause (7) of Article Five:
(8) the Guarantee ceases to be in full force and effect (except in accordance with the terms
of Section 804), or the Guarantor denies or disaffirms its obligations under
the Guarantee; or
(9) default under any bond, debenture, note or other evidence of Indebtedness (other than
Non-Recourse Indebtedness) by either the Guarantor or any Subsidiary of the Guarantor or under any
mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness (other than Non-Recourse Indebtedness) of either of the Guarantor or
any Subsidiary of the Guarantor resulting in the acceleration of such Indebtedness (other than
Non-Recourse Indebtedness), or any default in payment of such Indebtedness (other than Non-Recourse
Indebtedness) (after expiration of any applicable grace periods and presentation of any debt
instruments, if required), if the aggregate amount of all such Indebtedness (other than
Non-Recourse Indebtedness) that has been so accelerated and with respect to which there has been
such a default in payment shall exceed $25,000,000 and there has been a failure to obtain
rescission or annulment of all such accelerations or to discharge all such defaulted indebtedness
within 20 days after there has been given, by registered or certified mail, to the Guarantor by the
Trustee or to the Guarantor and the Trustee by the Holders of at least 25% in principal amount of
all Outstanding Notes a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” under the Indenture; or
2.7
Amendments to Article Eleven of the Indenture (Redemption of
Securities)
. The Notes shall be redeemable at the option of the
Company as specified in the form of Note included in Exhibit A
hereto. Article
Eleven of the Indenture is hereby amended in respect of, and applicable to, the Notes and only in
respect of, and applicable to, the Notes by amending and restating in their entirety Sections 1105 and 1106 as set forth below:
13
SECTION 1105. Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in a trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of all the Notes that are to be redeemed on that date.
SECTION 1106. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of the Redemption Price) such
Notes shall cease to accrue interest. Upon surrender of any such Note for redemption in accordance
with said notice, such Notes shall be paid by the Company at the Redemption Price.
If any Notes called for redemption shall not be so paid upon surrender thereof for redemption,
the Redemption Price thereof shall accrue interest at the rate of 5.875% per annum.
2.8
Amendments to Section 902 of
the Indenture
. Section 902 of the Indenture is amended by adding thereto, in respect of the
Notes only, the following new clause (4):
(4) release the Guarantor from
its obligations under the Guarantee or the Indenture, except in
accordance with the terms of the Indenture.
Section 3.
Agreement to Guarantee
. In addition to the other covenants and
agreements of Guarantor in this First Supplemental Indenture, the Guarantor hereby agrees as follows:
(a) Subject to Subsection 3(b) below, the Guarantor (or any successor person pursuant to the
applicable provisions of this First Supplemental Indenture) hereby irrevocably and unconditionally
guarantees (such guarantee being the “
Guarantee
”) to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture and the Notes thereunder, that: (i) the principal of,
premium, if any, and interest on the Notes promptly will be paid in full when due, whether at the
Maturity, by acceleration, call for redemption or otherwise, and interest on the overdue principal,
premium, if any, and interest, if any, on the Notes, if lawful, and all other payment obligations
of the Company to the Holders and the Trustee under the Indenture and the Notes thereunder will be
promptly paid in full, all in accordance with the terms of the Indenture and the Notes thereunder,
and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other
payment obligations, the same will be promptly paid in full when due in accordance with the terms
of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing
payment when due by the Company of any amount so guaranteed for whatever reason, the Guarantor
shall be obligated to pay the same immediately. The Guarantor hereby agrees that its obligations
hereunder shall be full and unconditional, irrespective of
14
the validity, regularity or enforceability of the Indenture or the Notes thereunder, the absence of
any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to
any provisions of the Indenture or the Notes thereunder, the recovery of any judgment against the
Company, or any action to enforce the same or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The Guarantor hereby waives
presentment, demand of payment, protest, notice and all demands whatsoever and covenants that this
Guarantee shall not be discharged except by complete performance of the obligations contained in
the Notes and the Indenture.
(b) The Guarantor shall be subrogated to all rights of the Holders against the Company in
respect of any amounts paid by the Guarantor pursuant to the provisions of the Guarantee or the
Indenture;
provided
,
however
, that the Guarantor shall not be entitled to enforce
or to receive any payments arising out of, or based upon, such right of subrogation until the
principal of, premium, if any, and interest on all Notes issued under the Indenture shall have been
paid in full.
(c) The Guarantor will,
with respect to the Guarantee, pay Tax Additional Amounts, subject to the requirements and limitations in
Section 312, with respect to any Withholding Tax imposed by or for the account of any Taxing Jurisdiction
with respect to any payments made under the Guarantee.
Section 4.
Execution and Delivery of Guarantee
. To evidence the Guarantee set forth in
Section 3, the Company and the Guarantor hereby agree that a notation of such Guarantee shall be
endorsed on each Note authenticated and delivered by the Trustee, that such notation of such
Guarantee shall be in the form attached hereto as Exhibit B, and shall be executed on behalf of the
Guarantor by an officer thereof.
The Guarantor hereby agrees that the Guarantee set forth in Section 3 shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation of the Guarantee.
Section 5.
Limitation on Individual Liability
. No recourse under or upon any
obligation, covenant or agreement contained in this First Supplemental Indenture or the Guarantee,
or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, member, shareholder, officer or director, as such, past, present or future, of the
Guarantor, the Company or any successor Person, either directly or through the Guarantor or the
Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this First Supplemental
Indenture and the obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the incorporators,
members, shareholders, officers or directors, as such, of the Guarantor, the Company or any
successor Person, or any of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this First Supplemental
Indenture or in the Guarantee or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, member, shareholder, officer or
director, as such, because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this First Supplemental Indenture
or in the Guarantee or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this First Supplemental Indenture and the issuance
of the Guarantee.
15
Section 6.
Miscellaneous
.
6.1
The Trustee
. The recitals contained herein shall be taken as the statements of the
Company and the Trustee shall not assume responsibility for, or be liable in respect of, the
correctness thereof. The Trustee makes no representation as to, and shall not be liable or
responsible for, the validity or sufficiency of this First Supplemental Indenture.
6.2
Limited Effect
. Except as expressly amended hereby, all of the provisions,
covenants, terms and conditions of the Indenture are ratified and confirmed, and shall remain in
full force.
6.3
Counterparts
. This First Supplemental Indenture may be executed by one or more
parties hereto on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
6.4
Designation of Agent for Service
. The Company hereby designates the Guarantor as
its agent for service of process in the United States and agrees that service of process with
respect to any legal claim arising under the Indenture or the Notes may be effected by service
upon the Corporate Secretary or other officer of the Guarantor at its principal office in the United
States. The Company will at all times keep such a designated agent for service in the United
States and will notify the trustee of any change thereof.
6.5
Governing Law
. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A CONTRACT
UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE.
[
Signature
Page Follows
]
16
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed and their respective corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
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NOBLE HOLDING INTERNATIONAL LIMITED
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By:
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Name: Alan R. Hay
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Title: Director
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NOBLE CORPORATION
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By:
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Name: David W. Williams
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Title: Chairman of the Board, Chief
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Executive Officer and President
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THE BANK OF NEW YORK MELLON TRUST
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COMPANY, N.A.
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By:
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Name: Julie Hoffman-Ramos
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Title: Assistant Treasurer
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EXHIBIT A
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“
DTC
”), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NOBLE HOLDING INTERNATIONAL LIMITED
7.375% SENIOR NOTE DUE 2014
CUSIP
No. 65504L AA5
$
Issue Date: ________
Noble Holding International Limited, a Cayman Islands exempted company limited by shares (the
“Company”), promises to pay to
or its registered assigns, the principal amount of
($
) on March 15, 2014. This Note shall bear interest
as specified on the reverse side of this Note. Additional provisions of this Note are set
forth on the reverse side of this Note.
1
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
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NOBLE HOLDING INTERNATIONAL LIMITED
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By:
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Name:
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Title:
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2
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated:
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THE BANK OF NEW YORK MELLON TRUST
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COMPANY, N.A.
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By:
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Name:
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Title:
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3
[FORM OF REVERSE SIDE OF THE NOTE]
7.375% SENIOR NOTE DUE 2014
1.
Interest
. Commencing November 21, 2008, interest on this Note will accrue at the
rate of 7.375% per annum and will be payable in cash semiannually on March 15 and September 15 of
each year, commencing March 15, 2009, to Holders of record on the close of business on the
immediately preceding March 1 and September 1.
2.
Method of Payment
. Subject to the terms and conditions of the Indenture, payments
in respect of the Notes shall be made at the office or agency of the Company maintained for that
purpose in the City and State of New York. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and private debts.
3.
Paying Agent and Security Registrar
. Initially, The Bank of New York Mellon Trust
Company, N.A., as Trustee (the “
Trustee
”), will act as Paying Agent and Security Registrar.
The Company may appoint and change any paying agent or security registrar without notice, other
than notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may
act as Paying Agent or Security Registrar.
4.
Indenture
. The Company issued the Notes under an Indenture, dated as of November
21, 2008, between the Company and the Trustee, as supplemented by a First Supplemental Indenture,
dated as of November 21, 2008, between the Company, the Trustee and Noble Corporation, as Guarantor
(collectively, the “
Indenture
”). The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the “
Trust Indenture Act of 1939
”). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act of 1939 for a
statement of those terms.
The Notes
are general unsecured obligations of the Company, initially limited to $250,000,000 aggregate
principal amount, subject to the Company’s ability to issue additional Notes as provided in the Indenture.
5.
Redemption at the Option of the Company
. No sinking fund is provided for the Notes.
The Notes will be subject to redemption at the option of the Company, in whole or in part, at any
time and from time to time, upon not less than 30 nor more than 60 days’ notice to the Holders
prior to the Redemption Date, at the Redemption Price (as defined in the Indenture).
If notice of redemption has been given as provided in Article Eleven of the Indenture and
funds for the redemption of any Notes called for redemption shall have been made available on the
Redemption Date referred to in such notice, such Notes will cease to bear interest on the date
fixed for such redemption specified in such notice and the only right of the Holders of the Notes
from and after the Redemption Date will be to receive payment of the Redemption Price upon
surrender of such Notes in accordance with such notice.
4
6.
Tax Additional Amounts
. The Company
and the Guarantor shall pay Tax Withholding Amounts, if any, as provided in the Indenture.
7.
Denominations; Transfer; Exchange
. The Notes are in registered form, without
coupons, in denominations of $1,000 of principal amount and integral multiples of $1,000. A Holder
may register the transfer of or exchange Notes in accordance with the Indenture. The Security
Registrar may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The
Company shall not be required to exchange or register a transfer of (a) any Notes for a period of
15 days next preceding the first mailing or publication of notice of redemption of Notes to be
redeemed or (b) any Notes selected, called or being called for redemption, in whole or in part,
except, in the case of any Note to be redeemed in part, the portion thereof not so to be redeemed.
8.
Persons Deemed Owners
. The registered Holder of this Note may be treated as the
owner of this Note for all purposes.
9.
Unclaimed Money
. The Trustee and each Paying Agent shall each return to the Company
upon written request any money held by them for the payment of any amount with respect to the Notes
that remains unclaimed for three years. After return to the Company, Holders entitled to the money
must look to the Company for payment as general creditors unless an applicable abandoned property
law designates another person.
10.
Amendment; Waiver
. Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding and (ii) certain defaults or
noncompliance with certain provisions may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the Company and the
Trustee may amend the Indenture or the Notes to cure any ambiguity, defect or inconsistency, or to
comply with Article Nine of the Indenture, or to make any change that does not adversely affect the
rights of any Holder of Notes in any material respect.
11.
Defaults and Remedies
. If an Event of Default occurs relating to certain bankruptcy events as provided in the Indenture,
the principal amount of and accrued interest on the Notes shall automatically become due and
payable without any action of the Trustee or the Holders of Notes. Except as provided in the
Indenture, if any other Event of Default shall occur and be continuing, the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Notes then Outstanding, by notice in
writing to the Company (and to the Trustee, if given by the Holders), may declare the principal
of and accrued interest on all of the Notes and the interest, if any, accrued thereon to be due and
payable immediately.
The Company is required to furnish to the Trustee annually a certificate as to compliance by
the Company with all conditions and covenants under the Indenture.
5
12.
Trustee Dealings With the Company
. Subject to certain limitations imposed by the
Trust Indenture Act of 1939 and the Indenture, the Trustee under the Indenture, in its individual
or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and
collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not Trustee.
13.
No Recourse Against Others
. A director, officer, employee, member or stockholder,
as such, of the Company or the Guarantor shall not have any liability for any obligations of the
Company or the payment obligations of the Guarantor under the Notes or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes and the Guarantee.
14.
Authentication
. This Note shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee’s Certificate of Authentication on the other side of this Note.
15.
Defeasance, Covenant Defeasance
. The Notes are subject to defeasance and covenant
defeasance as provided in the Indenture.
16.
Abbreviations
. Customary abbreviations may be used in the name of a Holder of
Notes or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
custodian), and U/G/M/A (= Uniform Gift to Minors Act).
17.
Governing Law
. THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK.
The Company will furnish to any Holder of Notes upon written request and without charge a copy
of the Indenture. Requests may be made to: Noble Corporation, 13135 South Dairy Ashford, Suite 800,
Sugar Land, Texas 77478, Attention: Corporate Secretary.
6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Name, Social Security Number or other Identifying Number of Assignee)
at the following address:
(Please print or typewrite name and address, including postal zip code, of assignee)
this Note and all rights hereunder, hereby irrevocably constituting and appointing
Attorney to transfer this Note on the books of the Trustee, with full power of substitution in the
premises.
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Dated:
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Notice: The signature(s) on this
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Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any
change whatsoever.
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7
EXHIBIT B
[FORM OF NOTATION OF GUARANTEE]
NOTATION OF PAYMENT GUARANTEE OF NOBLE CORPORATION
For value received, the undersigned, Noble Corporation, a Cayman Islands exempted company
limited by shares (the “
Guarantor
,” which term includes any successor person under the
indenture referred to below), has unconditionally guaranteed, to the extent set forth in, and
subject to the provisions of, the First Supplemental Indenture, dated as of November 21, 2008 (the
“
First Supplemental Indenture
”), among Noble Holding International Limited, a Cayman
Islands exempted company limited by shares (the “
Company
”), the Guarantor and The Bank of
New York Mellon Trust Company, N.A., as trustee (the “
Trustee
”), (a) the due and punctual
payment of the principal of, premium, if any, and interest on the Notes (as defined in the First
Supplemental Indenture), whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful,
and the due and punctual performance of all other payment obligations of the Company to the holders
of the Notes or the Trustee all in accordance with the terms of the Indenture, dated as of November
21, 2008, between the Company and the Trustee, with respect to the Company’s 7.375% Senior Notes
due 2014 and the First Supplemental Indenture, and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other payment obligations, that the same will be promptly
paid in full when due in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The payment obligations of the Guarantor to the holders of
the Notes and to the Trustee pursuant to this guarantee are expressly set forth in Sections 3
through 5 of the First Supplemental Indenture, and reference is hereby made to the First
Supplemental Indenture for the precise terms of this payment guarantee.
8
IN WITNESS WHEREOF, Noble Corporation has caused this Notation of Payment Guarantee to be duly
executed as of the day and year first above written.
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NOBLE CORPORATION,
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as Guarantor
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By:
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Name:
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Title:
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9
